SECOND DIVISION

[ G.R. No. 192413, June 13, 2012 ]

RIZAL COMMERCIAL BANKING CORPORATION, PETITIONER, VS. HI-TRI DEVELOPMENT
CORPORATION AND LUZ R. BAKUNAWA, RESPONDENTS.

DECISION

SERENO, J.:

Before the Court is a Rule 45 Petition for Review on Certiorari filed by petitioner Rizal
Commercial Banking Corporation (RCBC) against respondents Hi-Tri Development
Corporation (Hi-Tri) and Luz R. Bakunawa (Bakunawa). Petitioner seeks to appeal from the
26 November 2009 Decision and 27 May 2010 Resolution of the Court of Appeals (CA),[1]
which reversed and set aside the 19 May 2008 Decision and 3 November 2008 Order of
the Makati City Regional Trial Court (RTC) in Civil Case No. 06-244.[2] The case before
the RTC involved the Complaint for Escheat filed by the Republic of the Philippines
(Republic) pursuant to Act No. 3936, as amended by Presidential Decree No. 679 (P.D.
679), against certain deposits, credits, and unclaimed balances held by the branches of
various banks in the Philippines. The trial court declared the amounts, subject of the
special proceedings, escheated to the Republic and ordered them deposited with the
Treasurer of the Philippines (Treasurer) and credited in favor of the Republic.[3] The
assailed RTC judgments included an unclaimed balance in the amount of P1,019,514.29,
maintained by RCBC in its Ermita Business Center branch.

We quote the narration of facts of the CA[4] as follows:

x x x Luz [R.] Bakunawa and her husband Manuel, now deceased (Spouses Bakunawa)
are registered owners of six (6) parcels of land covered by TCT Nos. 324985 and 324986
of the Quezon City Register of Deeds, and TCT Nos. 103724, 98827, 98828 and 98829 of
the Marikina Register of Deeds. These lots were sequestered by the Presidential
Commission on Good Government [(PCGG)].

Sometime in 1990, a certain Teresita Millan (Millan), through her representative, Jerry
Montemayor, offered to buy said lots for P6,724,085.71, with the promise that she will
take care of clearing whatever preliminary obstacles there may[]be to effect a
completion of the sale. The Spouses Bakunawa gave to Millan the Owners Copies of
said TCTs and in turn, Millan made a down[]payment of P1,019,514.29 for the intended
purchase. However, for one reason or another, Millan was not able to clear said
obstacles. As a result, the Spouses Bakunawa rescinded the sale and offered to return to
Millan her down[]payment of P1,019,514.29. However, Millan refused to accept back the
P1,019,514.29 down[]payment. Consequently, the Spouses Bakunawa, through their
company, the Hi-Tri Development Corporation (Hi-Tri) took out on October 28, 1991, a
Managers Check from RCBC-Ermita in the amount of P1,019,514.29, payable to Millans
company Rosmil Realty and Development Corporation (Rosmil) c/o Teresita Millan and
used this as one of their basis for a complaint against Millan and Montemayor which they
filed with the Regional Trial Court of Quezon City, Branch 99, docketed as Civil Case No.
Q-91-10719 [in 1991], praying that:

That the defendants Teresita Mil[l]an and Jerry Montemayor may be ordered to return to
plaintiffs spouses the Owners Copies of Transfer Certificates of Title Nos. 324985,
324986, 103724, 98827, 98828 and 98829;

That the defendant Teresita Mil[l]an be correspondingly ordered to receive the amount of
One Million Nineteen Thousand Five Hundred Fourteen Pesos and Twenty Nine Centavos
(P1,019,514.29);
That the defendants be ordered to pay to plaintiffs spouses moral damages in the
amount of P2,000,000.00; and

That the defendants be ordered to pay plaintiffs attorneys fees in the amount of
P50,000.00.

Being part and parcel of said complaint, and consistent with their prayer in Civil Case No.
Q-91-10719 that Teresita Mil[l]an be correspondingly ordered to receive the amount of
One Million Nineteen Thousand Five Hundred Fourteen Pesos and Twenty Nine [Centavos]
(P1,019,514.29)[], the Spouses Bakunawa, upon advice of their counsel, retained
custody of RCBC Managers Check No. ER 034469 and refrained from canceling or
negotiating it.

All throughout the proceedings in Civil Case No. Q-91-10719, especially during
negotiations for a possible settlement of the case, Millan was informed that the
Managers Check was available for her withdrawal, she being the payee.

On January 31, 2003, during the pendency of the abovementioned case and without the
knowledge of [Hi-Tri and Spouses Bakunawa], x x x RCBC reported the P1,019,514.29-
credit existing in favor of Rosmil to the Bureau of Treasury as among its unclaimed
balances as of January 31, 2003. Allegedly, a copy of the Sworn Statement executed by
Florentino N. Mendoza, Manager and Head of RCBCs Asset Management, Disbursement
& Sundry Department (AMDSD) was posted within the premises of RCBC-Ermita.

On December 14, 2006, x x x Republic, through the [Office of the Solicitor General
(OSG)], filed with the RTC the action below for Escheat [(Civil Case No. 06-244)].

On April 30, 2008, [Spouses Bakunawa] settled amicably their dispute with Rosmil and
Millan. Instead of only the amount of P1,019,514.29, [Spouses Bakunawa] agreed to
pay Rosmil and Millan the amount of P3,000,000.00, [which is] inclusive [of] the
amount of []P1,019,514.29. But during negotiations and evidently prior to said
settlement, [Manuel Bakunawa, through Hi-Tri] inquired from RCBC-Ermita the availability
of the P1,019,514.29 under RCBC Managers Check No. ER 034469. [Hi-Tri and Spouses
Bakunawa] were however dismayed when they were informed that the amount was
already subject of the escheat proceedings before the RTC.

On April 17, 2008, [Manuel Bakunawa, through Hi-Tri] wrote x x x RCBC, viz:

We understand that the deposit corresponding to the amount of Php 1,019,514.29

stated in the Managers Check is currently the subject of escheat proceedings pending
before Branch 150 of the Makati Regional Trial Court.

Please note that it was our impression that the deposit would be taken from [Hi-Tris]
RCBC bank account once an order to debit is issued upon the payees presentation of the
Managers Check. Since the payee rejected the negotiated Managers Check,
presentation of the Managers Check was never made.

Consequently, the deposit that was supposed to be allocated for the payment of the
Managers Check was supposed to remain part of the Corporation[s] RCBC bank
account, which, thereafter, continued to be actively maintained and operated. For this
reason, We hereby demand your confirmation that the amount of Php 1,019,514.29
continues to form part of the funds in the Corporations RCBC bank account, since pay-
out of said amount was never ordered. We wish to point out that if there was any
attempt on the part of RCBC to consider the amount indicated in the Managers Check
separate from the Corporations bank account, RCBC would have issued a statement to
that effect, and repeatedly reminded the Corporation that the deposit would be
considered dormant absent any fund movement. Since the Corporation never received
any statements of account from RCBC to that effect, and more importantly, never
received any single letter from RCBC noting the absence of fund movement and advising
the Corporation that the deposit would be treated as dormant.

On April 28, 2008, [Manuel Bakunawa] sent another letter to x x x RCBC reiterating their
position as above-quoted.

In a letter dated May 19, 2008, x x x RCBC replied and informed [Hi-Tri and Spouses
Bakunawa] that:

The Banks Ermita BC informed Hi-Tri and/or its principals regarding the inclusion of
Managers Check No. ER034469 in the escheat proceedings docketed as Civil Case No.
06-244, as well as the status thereof, between 28 January 2008 and 1 February 2008.

xxx xxx xxx

Contrary to what Hi-Tri hopes for, the funds covered by the Managers Check No.
ER034469 does not form part of the Banks own account. By simple operation of law, the
funds covered by the managers check in issue became a deposit/credit susceptible for
inclusion in the escheat case initiated by the OSG and/or Bureau of Treasury.

xxx xxx xxx

Granting arguendo that the Bank was duty-bound to make good the check, the Banks
obligation to do so prescribed as early as October 2001.
(Emphases, citations, and annotations were omitted.)

The RTC Ruling

The escheat proceedings before the Makati City RTC continued. On 19 May 2008, the trial
court rendered its assailed Decision declaring the deposits, credits, and unclaimed
balances subject of Civil Case No. 06-244 escheated to the Republic. Among those
included in the order of forfeiture was the amount of ?1,019,514.29 held by RCBC as
allocated funds intended for the payment of the Managers Check issued in favor of
Rosmil. The trial court ordered the deposit of the escheated balances with the Treasurer
and credited in favor of the Republic. Respondents claim that they were not able to
participate in the trial, as they were not informed of the ongoing escheat proceedings.

Consequently, respondents filed an Omnibus Motion dated 11 June 2008, seeking the
partial reconsideration of the RTC Decision insofar as it escheated the fund allocated for
the payment of the Managers Check. They asked that they be included as party-
defendants or, in the alternative, allowed to intervene in the case and their motion
considered as an answer-in-intervention. Respondents argued that they had meritorious
grounds to ask reconsideration of the Decision or, alternatively, to seek intervention in
the case. They alleged that the deposit was subject of an ongoing dispute (Civil Case No.
Q-91-10719) between them and Rosmil since 1991, and that they were interested parties
to that case.[5]

On 3 November 2008, the RTC issued an Order denying the motion of respondents. The
trial court explained that the Republic had proven compliance with the requirements of
publication and notice, which served as notice to all those who may be affected and
prejudiced by the Complaint for Escheat. The RTC also found that the motion failed to
point out the findings and conclusions that were not supported by the law or the
evidence presented, as required by Rule 37 of the Rules of Court. Finally, it ruled that the
alternative prayer to intervene was filed out of time.

The CA Ruling

On 26 November 2009, the CA issued its assailed Decision reversing the 19 May 2008
Decision and 3 November 2008 Order of the RTC. According to the appellate court,[6]
RCBC failed to prove that the latter had communicated with the purchaser of the
Managers Check (Hi-Tri and/or Spouses Bakunawa) or the designated payee (Rosmil)
immediately before the bank filed its Sworn Statement on the dormant accounts held
therein. The CA ruled that the banks failure to notify respondents deprived them of an
opportunity to intervene in the escheat proceedings and to present evidence to
substantiate their claim, in violation of their right to due process. Furthermore, the CA
pronounced that the Makati City RTC Clerk of Court failed to issue individual notices
directed to all persons claiming interest in the unclaimed balances, as well as to require
them to appear after publication and show cause why the unclaimed balances should not
be deposited with the Treasurer of the Philippines. It explained that the jurisdictional
requirement of individual notice by personal service was distinct from the requirement of
notice by publication. Consequently, the CA held that the Decision and Order of the RTC
were void for want of jurisdiction.

Issue

After a perusal of the arguments presented by the parties, we cull the main issues as
follows:

Whether the Decision and Order of the RTC were void for failure to send separate notices
to respondents by personal service
Whether petitioner had the obligation to notify respondents immediately before it filed its
Sworn Statement with the Treasurer
Whether or not the allocated funds may be escheated in favor of the Republic

Discussion

Petitioner bank assails[7] the CA judgments insofar as they ruled that notice by personal
service upon respondents is a jurisdictional requirement in escheat proceedings.
Petitioner contends that respondents were not the owners of the unclaimed balances and
were thus not entitled to notice from the RTC Clerk of Court. It hinges its claim on the
theory that the funds represented by the Managers Check were deemed transferred to
the credit of the payee or holder upon its issuance.

We quote the pertinent provision of Act No. 3936, as amended, on the rule on service of
processes, to wit:

Sec. 3. Whenever the Solicitor General shall be informed of such unclaimed balances, he
shall commence an action or actions in the name of the People of the Republic of the
Philippines in the Court of First Instance of the province or city where the bank, building
and loan association or trust corporation is located, in which shall be joined as parties
the bank, building and loan association or trust corporation and all such creditors or
depositors. All or any of such creditors or depositors or banks, building and loan
association or trust corporations may be included in one action. Service of process in
such action or actions shall be made by delivery of a copy of the complaint and
summons to the president, cashier, or managing officer of each defendant bank, building
and loan association or trust corporation and by publication of a copy of such summons
in a newspaper of general circulation, either in English, in Filipino, or in a local dialect,
published in the locality where the bank, building and loan association or trust
corporation is situated, if there be any, and in case there is none, in the City of Manila, at
such time as the court may order. Upon the trial, the court must hear all parties who
have appeared therein, and if it be determined that such unclaimed balances in any
defendant bank, building and loan association or trust corporation are unclaimed as
hereinbefore stated, then the court shall render judgment in favor of the Government of
the Republic of the Philippines, declaring that said unclaimed balances have escheated
to the Government of the Republic of the Philippines and commanding said bank,
building and loan association or trust corporation to forthwith deposit the same with the
Treasurer of the Philippines to credit of the Government of the Republic of the Philippines
to be used as the National Assembly may direct.

At the time of issuing summons in the action above provided for, the clerk of court shall
also issue a notice signed by him, giving the title and number of said action, and
referring to the complaint therein, and directed to all persons, other than those named
as defendants therein, claiming any interest in any unclaimed balance mentioned in said
complaint, and requiring them to appear within sixty days after the publication or first
publication, if there are several, of such summons, and show cause, if they have any,
why the unclaimed balances involved in said action should not be deposited with the
Treasurer of the Philippines as in this Act provided and notifying them that if they do not
appear and show cause, the Government of the Republic of the Philippines will apply to
the court for the relief demanded in the complaint. A copy of said notice shall be
attached to, and published with the copy of, said summons required to be published as
above, and at the end of the copy of such notice so published, there shall be a statement
of the date of publication, or first publication, if there are several, of said summons and
notice. Any person interested may appear in said action and become a party thereto.
Upon the publication or the completion of the publication, if there are several, of the
summons and notice, and the service of the summons on the defendant banks, building
and loan associations or trust corporations, the court shall have full and complete
jurisdiction in the Republic of the Philippines over the said unclaimed balances and over
the persons having or claiming any interest in the said unclaimed balances, or any of
them, and shall have full and complete jurisdiction to hear and determine the issues
herein, and render the appropriate judgment thereon. (Emphasis supplied.)

Hence, insofar as banks are concerned, service of processes is made by delivery of a

copy of the complaint and summons upon the president, cashier, or managing officer of
the defendant bank.[8] On the other hand, as to depositors or other claimants of the
unclaimed balances, service is made by publication of a copy of the summons in a
newspaper of general circulation in the locality where the institution is situated.[9] A
notice about the forthcoming escheat proceedings must also be issued and published,
directing and requiring all persons who may claim any interest in the unclaimed balances
to appear before the court and show cause why the dormant accounts should not be
deposited with the Treasurer.

Accordingly, the CA committed reversible error when it ruled that the issuance of
individual notices upon respondents was a jurisdictional requirement, and that failure to
effect personal service on them rendered the Decision and the Order of the RTC void for
want of jurisdiction. Escheat proceedings are actions in rem,[10] whereby an action is
brought against the thing itself instead of the person.[11] Thus, an action may be
instituted and carried to judgment without personal service upon the depositors or other
claimants.[12] Jurisdiction is secured by the power of the court over the res.[13]
Consequently, a judgment of escheat is conclusive upon persons notified by
advertisement, as publication is considered a general and constructive notice to all
persons interested.[14]

Nevertheless, we find sufficient grounds to affirm the CA on the exclusion of the funds
allocated for the payment of the Managers Check in the escheat proceedings.
Escheat proceedings refer to the judicial process in which the state, by virtue of its
sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without
there being an interested person having a legal claim thereto.[15] In the case of dormant
accounts, the state inquires into the status, custody, and ownership of the unclaimed
balance to determine whether the inactivity was brought about by the fact of death or
absence of or abandonment by the depositor.[16] If after the proceedings the property
remains without a lawful owner interested to claim it, the property shall be reverted to
the state to forestall an open invitation to self-service by the first comers.[17]
However, if interested parties have come forward and lain claim to the property, the
courts shall determine whether the credit or deposit should pass to the claimants or be
forfeited in favor of the state.[18] We emphasize that escheat is not a proceeding to
penalize depositors for failing to deposit to or withdraw from their accounts. It is a
proceeding whereby the state compels the surrender to it of unclaimed deposit balances
when there is substantial ground for a belief that they have been abandoned, forgotten,
or without an owner.[19]

Act No. 3936, as amended, outlines the proper procedure to be followed by banks and
other similar institutions in filing a sworn statement with the Treasurer concerning
dormant accounts:

Sec. 2. Immediately after the taking effect of this Act and within the month of January of
every odd year, all banks, building and loan associations, and trust corporations shall
forward to the Treasurer of the Philippines a statement, under oath, of their respective
managing officers, of all credits and deposits held by them in favor of persons known to
be dead, or who have not made further deposits or withdrawals during the preceding ten
years or more, arranged in alphabetical order according to the names of creditors and
depositors, and showing:

(a) The names and last known place of residence or post office addresses of the persons
in whose favor such unclaimed balances stand;

(b) The amount and the date of the outstanding unclaimed balance and whether the
same is in money or in security, and if the latter, the nature of the same;
(c) The date when the person in whose favor the unclaimed balance stands died, if
known, or the date when he made his last deposit or withdrawal; and
(d) The interest due on such unclaimed balance, if any, and the amount thereof.

A copy of the above sworn statement shall be posted in a conspicuous place in the
premises of the bank, building and loan association, or trust corporation concerned for at
least sixty days from the date of filing thereof: Provided, That immediately before filing
the above sworn statement, the bank, building and loan association, and trust
corporation shall communicate with the person in whose favor the unclaimed balance
stands at his last known place of residence or post office address.

It shall be the duty of the Treasurer of the Philippines to inform the Solicitor General from
time to time the existence of unclaimed balances held by banks, building and loan
associations, and trust corporations. (Emphasis supplied.)

As seen in the afore-quoted provision, the law sets a detailed system for notifying
depositors of unclaimed balances. This notification is meant to inform them that their
deposit could be escheated if left unclaimed. Accordingly, before filing a sworn
statement, banks and other similar institutions are under obligation to communicate with
owners of dormant accounts. The purpose of this initial notice is for a bank to determine
whether an inactive account has indeed been unclaimed, abandoned, forgotten, or left
without an owner. If the depositor simply does not wish to touch the funds in the
meantime, but still asserts ownership and dominion over the dormant account, then the
bank is no longer obligated to include the account in its sworn statement.[20] It is not
the intent of the law to force depositors into unnecessary litigation and defense of their
rights, as the state is only interested in escheating balances that have been abandoned
and left without an owner.
In case the bank complies with the provisions of the law and the unclaimed balances are
eventually escheated to the Republic, the bank shall not thereafter be liable to any
person for the same and any action which may be brought by any person against in any
bank xxx for unclaimed balances so deposited xxx shall be defended by the Solicitor
General without cost to such bank.[21] Otherwise, should it fail to comply with the
legally outlined procedure to the prejudice of the depositor, the bank may not raise the
defense provided under Section 5 of Act No. 3936, as amended.

Petitioner asserts[22] that the CA committed a reversible error when it required RCBC to
send prior notices to respondents about the forthcoming escheat proceedings involving
the funds allocated for the payment of the Managers Check. It explains that, pursuant to
the law, only those whose favor such unclaimed balances stand are entitled to receive
notices. Petitioner argues that, since the funds represented by the Managers Check were
deemed transferred to the credit of the payee upon issuance of the check, the proper
party entitled to the notices was the payee Rosmil and not respondents. Petitioner
then contends that, in any event, it is not liable for failing to send a separate notice to
the payee, because it did not have the address of Rosmil. Petitioner avers that it was not
under any obligation to record the address of the payee of a Managers Check.

In contrast, respondents Hi-Tri and Bakunawa allege[23] that they have a legal interest in
the fund allocated for the payment of the Managers Check. They reason that, since the
funds were part of the Compromise Agreement between respondents and Rosmil in a
separate civil case, the approval and eventual execution of the agreement effectively
reverted the fund to the credit of respondents. Respondents further posit that their
ownership of the funds was evidenced by their continued custody of the Managers
Check.

An ordinary check refers to a bill of exchange drawn by a depositor (drawer) on a bank

(drawee),[24] requesting the latter to pay a person named therein (payee) or to the
order of the payee or to the bearer, a named sum of money.[25] The issuance of the
check does not of itself operate as an assignment of any part of the funds in the bank to
the credit of the drawer.[26] Here, the bank becomes liable only after it accepts or
certifies the check.[27] After the check is accepted for payment, the bank would then
debit the amount to be paid to the holder of the check from the account of the depositor-
drawer.

There are checks of a special type called managers or cashiers checks. These are bills
of exchange drawn by the banks manager or cashier, in the name of the bank, against
the bank itself.[28] Typically, a managers or a cashiers check is procured from the bank
by allocating a particular amount of funds to be debited from the depositors account or
by directly paying or depositing to the bank the value of the check to be drawn. Since
the bank issues the check in its name, with itself as the drawee, the check is deemed
accepted in advance.[29] Ordinarily, the check becomes the primary obligation of the
issuing bank and constitutes its written promise to pay upon demand.[30]

Nevertheless, the mere issuance of a managers check does not ipso facto work as an
automatic transfer of funds to the account of the payee. In case the procurer of the
managers or cashiers check retains custody of the instrument, does not tender it to the
intended payee, or fails to make an effective delivery, we find the following provision on
undelivered instruments under the Negotiable Instruments Law applicable:[31]

Sec. 16. Delivery; when effectual; when presumed. Every contract on a negotiable
instrument is incomplete and revocable until delivery of the instrument for the purpose
of giving effect thereto. As between immediate parties and as regards a remote party
other than a holder in due course, the delivery, in order to be effectual, must be made
either by or under the authority of the party making, drawing, accepting, or indorsing, as
the case may be; and, in such case, the delivery may be shown to have been conditional,
or for a special purpose only, and not for the purpose of transferring the property in the
instrument. But where the instrument is in the hands of a holder in due course, a valid
delivery thereof by all parties prior to him so as to make them liable to him is
conclusively presumed. And where the instrument is no longer in the possession of a
party whose signature appears thereon, a valid and intentional delivery by him is
presumed until the contrary is proved. (Emphasis supplied.)

Petitioner acknowledges that the Managers Check was procured by respondents, and
that the amount to be paid for the check would be sourced from the deposit account of
Hi-Tri.[32] When Rosmil did not accept the Managers Check offered by respondents, the
latter retained custody of the instrument instead of cancelling it. As the Managers Check
neither went to the hands of Rosmil nor was it further negotiated to other persons, the
instrument remained undelivered. Petitioner does not dispute the fact that respondents
retained custody of the instrument.[33]

Since there was no delivery, presentment of the check to the bank for payment did not
occur. An order to debit the account of respondents was never made. In fact, petitioner
confirms that the Managers Check was never negotiated or presented for payment to its
Ermita Branch, and that the allocated fund is still held by the bank.[34] As a result, the
assigned fund is deemed to remain part of the account of Hi-Tri, which procured the
Managers Check. The doctrine that the deposit represented by a managers check
automatically passes to the payee is inapplicable, because the instrument although
accepted in advance remains undelivered. Hence, respondents should have been
informed that the deposit had been left inactive for more than 10 years, and that it may
be subjected to escheat proceedings if left unclaimed.

After a careful review of the RTC records, we find that it is no longer necessary to remand
the case for hearing to determine whether the claim of respondents was valid. There was
no contention that they were the procurers of the Managers Check. It is undisputed that
there was no effective delivery of the check, rendering the instrument incomplete. In
addition, we have already settled that respondents retained ownership of the funds. As it
is obvious from their foregoing actions that they have not abandoned their claim over
the fund, we rule that the allocated deposit, subject of the Managers Check, should be
excluded from the escheat proceedings. We reiterate our pronouncement that the
objective of escheat proceedings is state forfeiture of unclaimed balances. We further
note that there is nothing in the records that would show that the OSG appealed the
assailed CA judgments. We take this failure to appeal as an indication of disinterest in
pursuing the escheat proceedings in favor of the Republic.

WHEREFORE the Petition is DENIED. The 26 November 2009 Decision and 27 May 2010
Resolution of the Court of Appeals in CA-G.R. SP No. 107261 are hereby AFFIRMED.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, Sereno, and Reyes, JJ., concur.

--------------------------------------------------------------------------------
[1] The Decision and Resolution in CA-G.R. SP No. 107261 were penned by CA Associate
Justice Vicente S.E. Veloso and concurred in by Associate Justices Andres B. Reyes, Jr. and
Marlene Gonzales-Sison.

[2] The Decision and Order in Civil Case No. 06-244 (for Escheat) was penned by Judge
Elmo M. Alameda.

[3] CA Decision at 1-2 (Hi-Tri Development Corporation v. Republic of the Philippines, CA-
G.R. SP No. 107261, 26 November 2009), rollo, pp. 61-62; RTC Decision at the 18th to the
19th pp. (unpaged) (Republic of the Philippines v. Allied Banking Corporation, Civil Case
No. 06-244, 19 May 2008), rollo, pp. 210-211.

[4] CA Decision at 2-7, supra, rollo, pp. 62-67.

[5] Omnibus Motion at 3-7 (Republic of the Philippines v. Allied Banking Corporation, Civil
Case No. 06-244, decided on 19 May 2008), rollo, pp. 217-221. See also RTC Judgment
(Bakunawa v. Milan, Civil Case No. Q-91-10719, 17 June 2008), rollo, pp. 287-289.

[6] CA Decision at 14-16, supra note 3, rollo, pp. 74-76.

[7] Petition for Review on Certiorari of RCBC at 41-49, rollo, pp. 43-51.

[8] Act No. 3936, as amended by P.D. 679, Sec. 3; see also Security Savings Bank v. State
of California, 263 U.S. 282 (1923).

[9] Id.

[10] Republic v. Court of First Instance, 247-A Phil. 85 (1988).

[11] See Ramos v. Ramos, G.R. No. 144294, 11 March 2003, 399 SCRA 43.

[12] See Grey v. De la Cruz, 17 Phil. 49 (1910).

[13] Id.

[14] Id. (citing Hamilton v. Brown, 161 U.S. 256 (1896)).

[15] BLACKS LAW DICTIONARY 545 (6th ed. 1990); Act No. 3936, as amended by P.D.
679, Secs. 1 and 3. See generally Republic v. Court of Appeals, 426 Phil. 177 (2002) and
Roth v. Delano, 338 U.S. 226 (1949).

[16] See Act No. 3936, as amended by P.D. 679, Sec. 1 and Security Savings Bank v.
State of California, supra note 8. See generally Roth v. Delano, supra.

[17] Republic v. Court of Appeals, supra note 15, at 183-184.

[18] See generally Roth v. Delano, supra note 15.

[19] See also Anderson National Bank v. Luckett, 321 U.S. 233 (1944), cited in American
Express Travel Related Services Co., Inc. v. Kentucky, 641 F.3d 685 (6th Circ. 2011) (U.S.).

[20] See generally Security Savings Bank v. State of California, supra note 8.

[21] Act No. 3936, as amended by P.D. 679 (1975), Sec. 5.

[22] Petition for Review on Certiorari of RCBC at 41-49, rollo, pp. 43-51.

[23] Comment of Respondents at 7-8, rollo, pp. 651-652.

[24] Act No. 2031 (1911), otherwise known as the Negotiable Instruments Law, Sec. 185.

[25] Moran v. Court of Appeals, G.R. No. 105836, 7 March 1994, 230 SCRA 799.

[26] Act No. 2031 (1911), otherwise known as the Negotiable Instruments Law, Sec. 189.

[27] Id. at Sec. 127.

[28] Bank of the Philippine Islands v. Roxas, G.R. No. 157833, 15 October 2007, 536 SCRA
168; International Corporate Bank v. Gueco, 404 Phil. 353 (2001).

[29] International Corporate Bank v. Gueco, supra.

[30] Id.; Republic v. Philippine National Bank, 113 Phil. 828 (1961). A managers or a
cashiers check may be treated as a promissory note and is the substantial equivalent of
a certified check (Id.; Equitable PCI Bank v. Ong, 533 Phil. 415 (2006); New Pacific Timber
& Supply Co., Inc. v. Seneris, 189 Phil. 517 (1980)). Certification signifies that the
instrument was drawn upon sufficient funds; that funds have been set apart or assigned
for the satisfaction of the check in favor of the payee; and that the funds shall be so
applied when the check is presented for payment (Id.). Here, the deposit represented by
the check is transferred from the credit of the maker to that of the payee or holder (Id.).
Thus, to all intents and purposes, the payee or holder becomes the depositor of the
drawee bank, with rights and duties of one in that situation (Id.).

[31] Act No. 2031 (1911). See also Malloy v. Smith, 265 Md. 460, 290 A.2d 486, 57
A.L.R.3d 1076 (Md. Ct. App. 1972)(U.S.) (citing Pikeville Nat. Bank & Trust Co. v. Shirley,
281 Ky. 150, 135 S.W.2d 426 (Ky Ct. App. 1939)(U.S.))

[32] Petition for Review on Certiorari of RCBC at 27-29, rollo, pp. 29-31.

[33] Id. at 53, rollo, p. 55.

[34] Letter of RCBC to Hi-Tri at 2, Petition for Review on Certiorari of RCBC, Annex N,
rollo, p. 180.

SECOND DIVISION
[ G.R. No. 143483, January 31, 2002 ]
REPUBLIC OF THE PHILIPPINES REPRESENTED BY THE REGISTER OF DEEDS OF PASAY
CITY, PETITIONER, VS. COURT OF APPEALS (SPECIAL FORMER 3RD DIVISION) AND AMADA
H. SOLANO, ASSISTED BY HER HUSBAND ROMEO SOLANO, RESPONDENTS.

DECISION

BELLOSILLO, J.:

This petition for certiorari seeks to nullify two (2) Resolutions of the Court of Appeals
dated 12 November 1998 and 4 May 2000 giving due course to the petition for
annulment of judgment filed by private respondent Amada H. Solano on 3 February 1997
and denying petitioner's motion for reconsideration.

For more than three (3) decades (from 1952 to 1985) private respondent Amada Solano
served as the all-around personal domestic helper of the late Elizabeth Hankins, a widow
and a French national. During Ms. Hankins' lifetime and most especially during the
waning years of her life, respondent Solano was her faithful girl Friday and a constant
companion since no close relative was available to tend to her needs.

In recognition of Solano's faithful and dedicated service, Ms. Hankins executed in her
favor two (2) deeds of donation involving two (2) parcels of land covered by TCT Nos.
7807 and 7808 of the Registry of Deeds. Private respondent alleged that she misplaced
the deeds of donation and were nowhere to be found.

While the deeds of donation were missing, the Republic filed a petition for the escheat of
the estate of Elizabeth Hankins before the Regional Trial Court of Pasay City.[1] During
the proceedings, a motion for intervention was filed by Romeo Solano, spouse of private
respondent, and one Gaudencio Regosa, but on 24 June 1987 the motion was denied by
the trial court for the reason that "they miserably failed to show valid claim or right to
the properties in question."[2] Since it was established that there were no known heirs
and persons entitled to the properties of decedent Hankins, the lower court escheated
the estate of the decedent in favor of petitioner Republic of the Philippines.

By virtue of the decision of the trial court, the Registry of Deeds of Pasay City cancelled
TCT Nos. 7807 and 7808 and issued new ones, TCT Nos. 129551 and 129552, both in the
name of Pasay City.
In the meantime, private respondent claimed that she accidentally found the deeds of
donation she had been looking for for a long time. In view of this development,
respondent Amada Solano filed on 28 January 1997 a petition before the Court of
Appeals for the annulment of the lower court's decision alleging, among other, that[3] -

13.1. The deceased Elizabeth Hankins having donated the subject properties to the
petitioner in 1983 (for TCT No. 7807) and 1984 (for TCT No. 7808), these properties did
not and could not form part of her estate when she died on September 20, 1985.
Consequently, they could not validly be escheated to the Pasay City Government;

13.2. Even assuming arguendo that the properties could be subject of escheat
proceedings, the decision is still legally infirm for escheating the properties to an entity,
the Pasay City Government, which is not authorized by law to be the recipient thereof.
The property should have been escheated in favor of the Republic of the Philippines
under Rule 91, Section 1 of the New Rules of Court x x x x
On 17 March 1997 the Office of the Solicitor General representing public respondents
RTC and the Register of Deeds (herein petitioner) filed an answer setting forth their
affirmative defenses, to wit: (a) lack of jurisdiction over the nature of the action; and, (b)
the cause of action was barred by the statute of limitations.

Finding no cogent reason to justify the dismissal of the petition for annulment, the Court
of Appeals issued on 12 November 1998 the first of its assailed Resolutions giving due
course to the petition for annulment of judgment and setting the date for trial on the
merits. In upholding the theory of respondent Solano, the Appeals Court ruled that -

Herein petitioner invokes lack of jurisdiction over the subject matter on the part of
respondent RTC to entertain the escheat proceedings x x x because the parcels of land
have been earlier donated to herein petitioner in 1983 and 1984 prior to the death of
said Hankins; and therefore, respondent court could not have ordered the escheat of said
properties in favor of the Republic of the Philippines, assign them to respondent Pasay
City government, order the cancellation of the old titles in the name of Hankins and
order the properties registered in the name of respondent Pasay City x x x x The 1997
Rules of Civil Procedure specifically laid down the grounds of annulment filed before this
Court, to wit: extrinsic fraud and lack of jurisdiction. Jurisdiction over the subject matter
is conferred by law and this jurisdiction is determined by the allegations of the complaint.
It is axiomatic that the averments of the complaint determine the nature of the action
and consequently the jurisdiction of the courts. Thus whether or not the properties in
question are no longer part of the estate of the deceased Hankins at the time of her
death; and, whether or not the alleged donations are valid are issues in the present
petition for annulment which can be resolved only after a full blown trial x x x x

It is for the same reason that respondents espousal of the statute of limitations against
herein petition for annulment cannot prosper at this stage of the proceedings. Indeed,
Section 4, Rule 91 of the Revised Rules of Court expressly provides that a person entitled
to the estate must file his claim with the court a quo within five (5) years from the date
of said judgment. However, it is clear to this Court that herein petitioner is not claiming
anything from the estate of the deceased at the time of her death on September 20,
1985; rather she is claiming that the subject parcels of land should not have been
included as part of the estate of the said decedent as she is the owner thereof by virtue
of the deeds of donation in her favor.

In effect, herein petitioner, who alleges to be in possession of the premises in question, is

claiming ownership of the properties in question and the consequent reconveyance
thereof in her favor which cause of action prescribes ten (10) years after the issuance of
title in favor of respondent Pasay City on August 7, 1990. Herein petition was seasonably
filed on February 3, 1997 under Article 1144, to wit:

Art. 1144. The following actions must be brought within ten years from the time the
right of action accrues: (1) Upon a written contract; (2) Upon an obligation created by
law; (3) Upon a judgment.
And Article 1456, to wit:
Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by
force of law, considered a trustee of an implied trust for the benefit of the person from
whom the property comes.[4]
In its Resolution of 4 May 2000 the Court of Appeals denied the motion for
reconsideration filed by public respondents Register of Deeds of Pasay City and the
Presiding judge of the lower court and set the trial on the merits for June 15 and 16,
2000.

In its effort to nullify the Resolutions herein before mentioned, petitioner points out that
the Court of Appeals committed grave abuse of discretion amounting to lack or excess of
jurisdiction (a) in denying petitioner's affirmative defenses set forth in its answer and
motion for reconsideration, and in setting the case for trial and reception of evidence;
and, (b) in giving due course to private respondent's petition for annulment of decision
despite the palpable setting-in of the 5-year statute of limitations within which to file
claims before the court a quo set forth in Rule 91 of the Revised Rules of Court and Art.
1014 of the Civil Code.

Petitioner argues that the lower court had jurisdiction when it escheated the properties in
question in favor of the city government and the filing of a petition for annulment of
judgment on the ground of subsequent discovery of the deeds of donation did not divest
the lower court of its jurisdiction on the matter. It further contends that Rule 47 of the
1997 Rules of Civil Procedure only provides for two (2) grounds for the annulment of
judgment, namely: extrinsic fraud and lack of jurisdiction. As such the discovery of the
deeds of donation seven (7) years after the finality of the escheat proceedings is an
extraneous matter which is clearly not an instance of extrinsic fraud nor a ground to oust
the lower court of its jurisdiction.

Petitioner also insists that notwithstanding the execution of the deeds of donation in
favor of private respondent, the 5-year statute of limitations within which to file claims
before the court a quo as set forth in Rule 91 of the Revised Rules of Court has set in.

The present controversy revolves around the nature of the parcels of land purportedly
donated to private respondent which will ultimately determine whether the lower court
had jurisdiction to declare the same escheated in favor of the state.

We rule for the petitioner. Escheat is a proceeding, unlike that of succession or

assignment, whereby the state, by virtue of its sovereignty, steps in and claims the real
or personal property of a person who dies intestate leaving no heir. In the absence of a
lawful owner, a property is claimed by the state to forestall an open "invitation to self-
service by the first comers."[5] Since escheat is one of the incidents of sovereignty, the
state may, and usually does, prescribe the conditions and limits the time within which a
claim to such property may be made. The procedure by which the escheated property
may be recovered is generally prescribed by statue, and a time limit is imposed within
which such action must be brought.

In this jurisdiction, a claimant to an escheated property must file his claim "within five (5)
years from the date of such judgment, such person shall have possession of and title to
the same, or if sold, the municipality or city shall be accountable to him for the proceeds,
after deducting the estate; but a claim not made shall be barred forever."[6] The 5-year
period is not a device capriciously conjured by the state to defraud any claimant; on the
contrary, it is decidedly prescribed to encourage would- be claimants to be punctilious in
asserting their claims, otherwise they may lose them forever in a final judgment.

Incidentally, the question may be asked: Does herein private respondent, not being an
heir but allegedly a donee, have the personality to be a claimant within the purview of
Sec. 4, Rule 91, of the Revised Rules of Court? In this regard, we agree with the Solicitor
General that the case of Municipal Council of San Pedro, Laguna v. Colegio de San Jose,
Inc.,[7] is applicable at least insofar as it concerns the Court's discussion on who is an
"interested party" in an escheat proceeding -
In a special proceeding for escheat under sections 750 and 751 the petitioner is not the
sole and exclusive interested party. Any person alleging to have a direct right or interest
in the property sought to be escheated is likewise an interested party and may appear
and oppose the petition for escheat. In the present case, the Colegio de San Jose, Inc.
and Carlos Young appeared alleging to have a material interest in the Hacienda de San
Pedro Tunasan; the former because it claims to be the exclusive owner of the hacienda,
and the latter because he claims to be the lessee thereof under a contract legally
entered with the former (underscoring supplied).
In the instant petition, the escheat judgment was handed down by the lower court as
early as 27 June 1989 but it was only on 28 January 1997, more or less seven (7) years
after, when private respondent decided to contest the escheat judgment in the guise of a
petition for annulment of judgment before the Court of Appeals. Obviously, private
respondent's belated assertion of her right over the escheated properties militates
against recovery.

A judgment in escheat proceedings when rendered by a court of competent jurisdiction is

conclusive against all persons with actual or constructive notice, but not against those
who are not parties or privies thereto. As held in Hamilton v. Brown,[8] "a judgment of
escheat was held conclusive upon persons notified by advertisement to all persons
interested. Absolute lack on the part of petitioners of any dishonest intent to deprive the
appellee of any right, or in any way injure him, constitutes due process of law, proper
notice having been observed." With the lapse of the 5-year period therefore, private
respondent has irretrievably lost her right to claim and the supposed "discovery of the
deeds of donation" is not enough justification to nullify the escheat judgment which has
long attained finality.

In the mind of this Court the subject properties were owned by the decedent during the
time that the escheat proceedings were being conducted and the lower court was not
divested of its jurisdiction to escheat them in favor of Pasay City notwithstanding an
allegation that they had been previously donated. We recall that a motion for
intervention was earlier denied by the escheat court for failure to show "valid claim or
right to the properties in question."[9] Where a person comes into an escheat proceeding
as a claimant, the burden is on such intervenor to establish his title to the property and
his right to intervene. A fortiori, the certificates of title covering the subject properties
were in the name of the decedent indicating that no transfer of ownership involving the
disputed properties was ever made by the deceased during her lifetime. In the absence
therefore of any clear and convincing proof showing that the subject lands had been
conveyed by Hankins to private respondent Solano, the same still remained, at least
before the escheat, part of the estate of the decedent and the lower court was right not
to assume otherwise. The Court of Appeals therefore cannot perfunctorily presuppose
that the subject properties were no longer part of the decedent's estate at the time the
lower court handed down its decision on the strength of a belated allegation that the
same had previously been disposed of by the owner. It is settled that courts decide only
after a close scrutiny of every piece of evidence and analyze each case with deliberate
precision and unadulterated thoroughness, the judgment not being diluted by
speculations, conjectures and unsubstantiated assertions.

WHEREFORE, the petition is GRANTED. The assailed Resolution of the Court of Appeals
dated 12 November 1998 giving due course to the petition for annulment of judgment,
and its Resolution dated 4 May 2000 denying petitioner's motion for reconsideration, are
SET ASIDE. The decision of the RTC-Br. 114, Pasay City, dated 27 June 1989, is
REINSTATED.

SO ORDERED.

Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.

Buena J., no part for being a co-signee of res. in question.

--------------------------------------------------------------------------------
[1] Raffled to Br. 114, Judge Baltazar R. Dizon, Presiding.

[2] CA Records, p. 234.

[3] Id., p. 5.

[4] CA decision; Rollo, pp. 34-35.

[5] Re Thompsons Estate, 192 F2d 451.

[6] Sec. 4, Rule 91, Revised Rules of Court.

[7] No. L-45460, 25 February 1938.

[8] 161 US 256.

[9] CA Records, p. 20.

FIRST DIVISION
[ G.R. No. 95533, November 20, 2000 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. COURT OF APPEALS AND PHILIPPINE
COMMERCIAL AND INTERNATIONAL BANK (SANTA ANA BRANCH DAVAO CITY),*
RESPONDENTS.

DECISION

YNARES-SANTIAGO, J.:

On December 28, 1988, a complaint for escheat[1]was filed by petitioner, Republic of the
Philippines, with the Regional Trial Court of Davao City against several banks which had
branches within the jurisdiction of the said court.[2]

The complaint alleged that pursuant to Act No. 3936 as amended by P.D. 679,[3] the
respective managers of the defendant banks submitted to the Treasurer of the Republic
of the Philippines separate statements prepared under oath which listed all deposits and
credits held by them in favor of depositors or creditors either known to be dead, have not
been heard from, or have not made depositors or withdrawals for ten years or more since
December 31, 1970.

The complaint prayed that after due notice to the defendant banks, and after hearing,
judgment be rendered declaring that the deposits, credits and unpaid balances in
question be escheated to petitioner, commanding defendant banks to forthwith deposit
the same with the Treasurer of the Philippines.[4]

On April 12, 1989, the lower court issued an order directing petitioner to show cause why
the complaint should not be dismissed for failure to state a cause of action. According to
the order, the complaint contained no allegation that defendant banks have complied
with two of the conditions in Section 2 of Act No. 3936,[5] compliance with the
requirements being necessary for the complaint to prosper.[6]

On April 27, 1989, petitioner submitted its manifestation and motion to allow
amendment of the petition to allege compliance with the conditions set forth in Section 2
of Act. No. 3936 as amended by P.D. 679 ("Unclaimed Balances Law").[7]

The amended complaint prayed that judgment be rendered ordering that the amount of
P97,263.38, deposited with the defendant banks by depositors who are known to be
dead or have not made further deposits or withdrawals during the preceding ten years or
more be escheated in favor of the Republic of the Philippines in accordance with Section
1, Act 3936 as amended by P.D. 679.

The trial court found the amendment sufficient and issued an order dated June 7, 1989
requiring petitioner to publish a notice in the Mindanao Forum Standard once a week for
two consecutive weeks, containing the summons, notice to the public, the amended
petition incorporated in the summons and the list of unclaimed balances. The notice was
estimated to occupy 27 pages of the said newspaper at an estimated cost of P50,000.00.
[8]

On July 11, 1989, petitioner submitted a manifestation to the lower court praying that
the publication of the list of the unclaimed balances be dispensed with. Petitioner
posited that under Section 3, Act No. 3936, only the following are required to be
published: (1) summons to respondent banks; and (2) notice to all persons other than
those named defendants therein. Petitioner submitted that to require it to publish the
names and list of unclaimed balances would only result in additional and unnecessary
expense to the government.[9]

On August 1, 1989, the trial court issued the following Order:

"WHEREFORE, this Court will not dispense with the publication of the list of unclaimed
balances and, unless the plaintiff, through the Office of the Solicitor General, agrees to
the publication thereof as stated in the Order of this Court dated June 7, 1989, and
shoulder the cost thereof as also mentioned in said Order, and manifests its agreement
to this Court in writing within thirty (30) days from receipt thereof, this case will be
DISMISSED WITHOUT PREJUDICE.

SO ORDERED."
Petitioner filed a motion for reconsideration of the above Order,[10] which was denied by
the lower court for lack of merit.[11]

Subsequently, the trial court issued an Order dated October 31, 1989 dismissing Civil
Case No. 19488-89 without prejudice for plaintiff's failure to agree to the required
publication and shoulder the costs thereof.[12]

Petitioner received a copy of the aforesaid Order on November 15, 1989. On January 10,
1990, petitioner filed with the Court of Appeals a petition for mandamus and certiorari,
alleging grave abuse of discretion on the part of respondent judge in ordering the
publication of the list of unclaimed balances.[13] The petition for certiorari and
mandamus was dismissed by the Court of Appeals, on the ground that the proper
remedy was ordinary appeal. Thus:[14]

It is axiomatic that the extraordinary remedy of certiorari is available only in the absence
of a plain, speedy and adequate remedy like appeal. The order of the respondent court
dated October 31, 1989 dismissing the case is final and appealable (Monares vs. CWA
Enterpises, 105 Phil. 1333; Vol. I, Francisco, Rules of Court, at pp. 967-968). No timely
appeal having been taken therefrom, the same became final and executory and this
petition for certiorari filed on January 10, 1989 to review the interlocutory orders issued
by the court before the case was dismissed can no longer be entertained.

WHEREFORE, the petition for certiorari is dismissed for lack of merit.

SO ORDERED.

Aggrieved, petitioner filed an appeal under Rule 45 of the Rules of Court raising the
following issues:[15]
(1) Whether or not respondent RTC judge committed grave abuse of discretion
tantamount to lack of jurisdiction in ordering the publication of the list of unclaimed
balances listed under annexes "A" to "P" of the complaint.

(2) Whether or not the remedy of appeal, though available, was the speedy and
adequate remedy.

(3) Whether or not respondent RTC judge in issuing the interlocutory orders dated June 7,
1989 and August 1, 1990 - which are contrary to Sec. 1, Act 3936, as amended by PD
679, otherwise known as the "Unclaimed Balances Law" acted in excess of and without
jurisdiction; consequently thus making the Orders of Sept. 1, 1989 (denying the motion
for reconsideration) and the Order dated October 31, 1989 dismissing the case, patently
null and void.

(4) Whether or not the decision of the Honorable Court of Appeals is in accord with law.

The petition is without merit.

The Order of the trial court dismissing the complaint, albeit without prejudice, was a final
order in the sense that it finally disposed of the case. As such, petitioner's remedy was
to file an ordinary appeal to the Court of Appeals within fifteen (15) days from receipt
hereof.

This Court has previously held that an order dismissing a case without prejudice is a final
order if no motion for reconsideration or appeal therefrom is timely filed.

In Olympia International vs. Court of Appeals,[16] we stated thus:

The dismissal without prejudice of a complaint does not however mean that said
dismissal order was any less final. Such order of dismissal is complete in all details, and
though without prejudice, nonetheless finally disposed of the matter. It was not merely
an interlocutory order but a final disposition of the complaint.

The law grants an aggrieved party a period of fifteen (15) days from his receipt of the
court's decision or order disposing of the action or proceeding to appeal or move to
reconsider the same.

After the lapse of the fifteen-day period, an order becomes final and executory and is
beyond the power or jurisdiction of the court which rendered it to further amend or
revoke. A final judgment or order cannot be modified in any respect, even if the
modification sought is for the purpose of correcting an erroneous conclusion by the court
which rendered the same.

Hence, the Court of Appeals did not err when it dismissed the petition for certiorari and
mandamus, on the ground that the proper remedy was to appeal within fifteen (15) days.
The lapse of the reglementary period was of no moment. A basic requisite for the special
civil action of certiorari to lie is that there be no appeal nor plain, speedy and adequate
remedy in the ordinary course of law. Certiorari is a remedy of last recourse and is a
limited form of review. Its principal function is to keep inferior tribunals within their
jurisdiction. It cannot be used as a substitute for a lost appeal. It is not intended to
correct errors of procedure or mistakes in the judge's findings or conclusions.[17]

In a more recent case,this Court held:

xxx xxx xxx. Apparently, petitioner resorted to this special civil action because it had
failed to take an appeal within the 15-day reglementary period which expired on June 20,
1997. This, of course, cannot be done. The special civil action of certiorari cannot be
used as a substitute for an appeal which petitioner has lost. Nor can it be contended that
the only question raised in this case is a jurisdictional question. Certiorari lies only where
there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of
law. There is no reason why the question being raised by petitioner, i.e., whether the
appellate court committed a grave abuse of discretion in dismissing petitions, could not
have been raised by it on appeal.[18]

Admittedly, this Court, in accordance with the liberal spirit pervading the Rules of Court
and in the interest of justice, has the discretion to treat a petition for certiorari as having
been filed under Rule 45, especially if filed within the reglementary period for filing a
petition for review.[19] In the case at bar, there is no compelling reason for the Court of
Appeals to have treated the petition for certiorari and mandamus as an ordinary appeal.
Aside from being filed beyond the fifteen (15) day period, the petition failed to show that
the trial court committed grave abuse of discretion or want or excess of jurisdiction in
issuing the assailed Order dismissing the complaint. If at all, any mistake therein was an
error of judgment or procedure, which is correctible in an ordinary appeal filed in due
time.

The publication of the list of unclaimed balances is intended to safeguard the right of the
depositors, their heirs and successors to due process.[20] This was made clear by the
lower court in its assailed Order, to wit:[21]

Moreover, how would other persons who may have an interest in any of the unclaimed
balances know what this case is all about and whether they have an interest in this case
if the amended complaint and list of unclaimed balances are not published? Such other
persons may be heirs of the bank depositors named in the list of unclaimed balances.

xxx xxx xxx

The fact that the government is in a tight financial situation is not a justification for this
Court to dispense with the elementary rule of due process.

As declared by the trial court in its Order dated August 1, 1989, the dismissal of the
petition for escheat is without prejudice. In other words, the State can refile the said
petition, notwithstanding the lapse of time. Prescription of action does not run against
the government.[22]

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated August
14, 1990 is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

--------------------------------------------------------------------------------
* All banks impleaded were ordered by the /court of Appeals to comment on the petition,
but only private respondent Philippine Commercial and International Bank filed comment
(Rollo, Court of Appeals Decision, p. 29).

[1] Rollo, p. 36; Civil Case Nos. 19488-89.

[2] Impleaded were Philippine Commercial International Bank, Sta. Ana Branch; Citytrust
Banking Corporation, Davao Branch; consolidated Bank and Trust Co., Davao Ext. Office;
Manila Bank, Davao Branch; Pacific Banking Corporation, Davao Branch; Phil. Commercial
International Bank, Davao Branch; Philippine National Bank, Davao Branch; Prudential
Bank and Trust Company, Davao Main Branch; Consolidated Bank and Trust Company,
Sta. Ana Ext. Office; Rizal Commercial Banking Corporation, Davao Branch; Philippine
Veterans Bank, Davao Branch; Comtrust Bank, Davao Branch; Davao City Development
Bank, Davao City; Bank of the Philippine Islands, Digos Branch; and Rural Bank of Digos,
Inc.

[3] Sec. 2 of the law provides: "Immediately after the taking effect of this act and within
the month of January of every odd year, all banks, building and loan associations, and
trust corporations shall forward to the Treasurer of the Philippines a statement, under
oath, of their respective managing officers, of all credits and deposits held by them in
favor of persons known to be dead, or who have not made further deposits or
withdrawals during the preceding ten years or more, arranged in alphabetical order
according to the names of creditors and depositors. xxx."

[4] Rollo, p. 39.

[5] The conditions referred to are:

(1) A copy of the sworn statement shall be posted in a conspicuous place in th premises
of the bank, building and loan association, or trust corporation concerned for at least
sixty days from the date of filing thereof;

(2) Immediately before filing the above sworn statement, the bank, building and loan
association, and trust corporation shall communicate with the person in whose favor the
unclaimed balance stands at his last known place of residence or post office address.

[6] Rollo, pp. 42-43.

[7] Rollo, p. 44.

[8] Rollo, pp. 47-49.

[9] Rollo, pp. 50-51.

[10] Rollo, pp. 53-54.

[11] Rollo, pp. 56-57.

[12] Rollo, p. 58.

[13] Rollo, pp. 59-69; CA-G.R. SP No. 19647.

[14] Record, p. 244.

[15] Rollo, pp. 10-11.

[16] 180 SCRA 353, 361 (1989).

[17] Barangay Blue ridge "A" of Quezon City v. Court of Appeals, G.R. No. 111854,
November 24, 1999.

[18] Republic v. Court of Appeals & Traders Royal Bank, G.R. No. 129846, January 18,
2000; underscoring ours. See also BF Savings & Mortgage Bank v. Court of Appeals, G.R.
No. 132703, June 23, 2000.

[19] Republic of the Philippines v. Court of Appeals & Traders Royal Bank, supra.

[20] Rollo, p. 56.

[21] Rollo, p. 57.

[22] Reyes v. Court of Appeals 295 SCRA 296, 313 (1998).

580 Phil. 405

FIRST DIVISION
[ G.R. No. 158230, July 16, 2008 ]
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE DIRECTOR OF LANDS, PETITIONER,
VS. REGISTER OF DEEDS OF ROXAS CITY, ELIZABETH LEE, AND PACITA YU-LEE,
RESPONDENTS.

DECISION

CARPIO, J.:

The Case

This is a petition for review[1] of the Decision[2] dated 12 July 2002 and the Resolution
dated 9 May 2003 of the Court of Appeals in CA-G.R. CV No. 53890.

The Facts

In March 1936, Lee Liong, a Chinese citizen, bought Lot No. 398 from Vicenta Arcenas,
Francisco, Carmen Ramon, Mercedes, Concepcion, Mariano, Jose, and Manuel, all
surnamed Dinglasan. Lot No. 398, with an area of 1,574 square meters, is located at the
corner of Roxas Avenue and Pavia Street in Roxas City. In February 1944, Lee Liong died
intestate and was survived by his widow Ang Chia, and his sons Lee Bing Hoo and Lee
Bun Ting. On 30 June 1947, the surviving heirs of Lee Liong extrajudicially settled the
estate of the deceased and partitioned among themselves Lot No. 398. When Lee Bing
Hoo and Lee Bun Ting died, Lot No. 398 was transferred by succession to their respective
wives, Elizabeth Lee (Elizabeth) and Pacita Yu-Lee (Pacita).

In the 1956 case of Dinglasan v. Lee Bun Ting,[3] involving Lot No. 398, the Court held
that even if the sale of the property was null and void for violating the constitutional
prohibition on the sale of land to an alien, still the doctrine of in pari delicto barred the
sellers from recovering the title to the property. Eleven years later, in the case of Lee Bun
Ting v. Judge Aligaen,[4] the Court ordered the trial court to dismiss the complaint of the
Dinglasans for the recovery of Lot No. 398. Applying the doctrine of res judicata, the
Court held that the case was a mere relitigation of the same issues previously adjudged
with finality in the Dinglasan case, involving the same parties or their privies and
concerning the same subject matter.

On 7 September 1993, Elizabeth and Pacita (private respondents) filed a petition for
reconstitution of title of Lot No. 398 because the records of the Register of Deeds, Roxas
City were burned during the war. On 3 October 2001, the Court held that the trial court's
order of reconstitution was void for lack of factual support because it was based merely
on the plan and technical description approved by the Land Registration Authority.[5]

Meanwhile, on 26 January 1995, petitioner Republic of the Philippines (petitioner),

through the Office of the Solicitor General (OSG), filed with the Regional Trial Court of
Roxas City a Complaint[6] for Reversion of Title against private respondents and the
Register of Deeds of Roxas City, praying that (1) the sale of Lot No. 398 to Lee Liong be
set aside for being null and void ab initio; and (2) Lot No. 398 be reverted to the public
domain for the State's disposal in accordance with law.

In their Answer, private respondents invoked as affirmative defenses: (1) prescription; (2)
private ownership of Lot No. 398; and (3) Lee Liong's being a buyer in good faith and for
value. Furthermore, private respondents claimed that as Filipino citizens, they are
qualified to acquire Lot No. 398 by succession.
The Register of Deeds of Roxas City did not file an answer.

On 7 May 1996, the trial court rendered a decision ordering the reversion of Lot No. 398
to the State.

On appeal, the Court of Appeals rendered its Decision[7] dated 12 July 2002, reversing
the trial court's decision and declaring private respondents as the absolute and lawful
owners of Lot No. 398. Petitioner moved for reconsideration, which the Court of Appeals
denied in its Resolution[8] dated 9 May 2003.

Hence, this petition for review.

The Ruling of the Trial Court

The trial court ordered the reversion of Lot No. 398 to the State. The trial court held that
private respondents could not have acquired a valid title over Lot No. 398 because the
sale of the lot to their predecessor-in-interest Lee Liong was null and void. Being an
innocent purchaser in good faith and for value did not cure Lee Liong's disqualification as
an alien who is prohibited from acquiring land under the Constitution. The trial court
further held that prescription cannot be invoked against the State as regards an action
for reversion or reconveyance of land to the State.

The Ruling of the Court of Appeals

The Court of Appeals agreed with the trial court that the State is not barred by
prescription. However, the Court of Appeals held that the trial court erred in ordering the
reversion of Lot No. 398 to the State. Although the sale of Lot No. 398 to Lee Liong
violated the constitutional prohibition on aliens acquiring land, the Court of Appeals
noted that Lot No. 398 had already been acquired by private respondents through
succession. The transfer of Lot No. 398 to private respondents, who are Filipino citizens
qualified to acquire lands, can no longer be impugned on the basis of the invalidity of the
initial transfer. The flaw in the original transaction is considered cured and the title of the
transferee is deemed valid considering that the objective of the constitutional
proscription against alien ownership of lands, that is to keep our lands in Filipino hands,
has been achieved.

The Issue

Petitioner raises the lone issue that:

THE COURT OF APPEALS GRAVELY ERRED WHEN IT REVERSED AND SET ASIDE THE
APPEALED DECISION AND DECLARED PRIVATE RESPONDENTS THE ABSOLUTE AND
LAWFUL OWNERS AND POSSESSORS OF LOT NO. 398 OF ROXAS CITY CADASTRE
CONSIDERING THAT LEE LIONG, WHO IS AN ALIEN, AND THUS, CONSTITUTIONALLY
PROHIBITED TO OWN REAL PROPERTY IN THE PHILIPPINES, ACQUIRED NO RIGHT OR
TITLE OVER SUBJECT LOT WHICH HE COULD HAVE TRANSMITTED BY SUCCESSION TO
PRIVATE RESPONDENTS' PREDECESSORS-IN-INTEREST.
The Ruling of the Court

The petition is without merit.

Petitioner argues that since the sale of Lot No. 398 to Lee Liong was void, Lot No. 398
never became part of the deceased Lee Liong's estate. Hence, Lot No. 398 could not be
transmitted by succession to Lee Liong's surviving heirs and eventually to private
respondents.
We do not subscribe to petitioner's position. The circumstances of this case are similar to
the case of De Castro v. Teng Queen Tan,[9] wherein a residential lot was sold to a
Chinese citizen. Upon the death of the alien vendee, his heirs entered into an
extrajudicial settlement of the estate of the deceased and the subject land was
transferred to a son who was a naturalized Filipino. Subsequently, the vendor of the lot
filed a suit for annulment of sale for alleged violation of the Constitution prohibiting the
sale of land to aliens. Independently of the doctrine of in pari delicto, the Court sustained
the sale, holding that while the vendee was an alien at the time of the sale, the land has
since become the property of a naturalized Filipino citizen who is constitutionally
qualified to own land.

Similarly, in this case, upon the death of the original vendee who was a Chinese citizen,
his widow and two sons extrajudicially settled his estate, including Lot No. 398. When the
two sons died, Lot No. 398 was transferred by succession to their respective spouses,
herein private respondents who are Filipino citizens.

We now discuss whether reversion proceedings is still viable considering that Lot No. 398
has already been transfered to Filipino citizens. In the reconstitution case of Lee v.
Republic of the Philippines[10] involving Lot No. 398, this Court explained that the OSG
may initiate an action for reversion or escheat of lands which were sold to aliens
disqualified from acquiring lands under the Constitution. However, in the case of Lot No.
398, the fact that it was already transferred to Filipinos militates against escheat
proceedings, thus:

Although ownership of the land cannot revert to the original sellers, because of the
doctrine of pari delicto, the Solicitor General may initiate an action for reversion or
escheat of the land to the State, subject to other defenses, as hereafter set forth.

In this case, subsequent circumstances militate against escheat proceedings because the
land is now in the hands of Filipinos. The original vendee, Lee Liong, has since died and
the land has been inherited by his heirs and subsequently their heirs, petitioners herein
[Elizabeth Lee and Pacita Yu Lee]. Petitioners are Filipino citizens, a fact the Solicitor
General does not dispute.

The constitutional proscription on alien ownership of lands of the public or private

domain was intended to protect lands from falling in the hands of non-Filipinos. In this
case, however, there would be no more public policy violated since the land is in the
hands of Filipinos qualified to acquire and own such land. "If land is invalidly transferred
to an alien who subsequently becomes a citizen or transfers it to a citizen, the flaw in the
original transaction is considered cured and the title of the transferee is rendered valid."
Thus, the subsequent transfer of the property to qualified Filipinos may no longer be
impugned on the basis of invalidity of the initial transfer. The objective of the
constitutional provision to keep our lands in Filipino hands has been achieved.[11]
(Emphasis supplied)
In this case, the reversion proceedings was initiated only after almost 40 years from the
promulgation of the case of Dinglasan v. Lee Bun Ting,[12] where the Court held that the
sale of Lot No. 398 was null and void for violating the constitutional prohibition on the
sale of land to an alien. If petitioner had commenced reversion proceedings when Lot No.
398 was still in the hands of the original vendee who was an alien disqualified to hold
title thereto, then reversion of the land to the State would undoubtedly be allowed.
However, this is not the case here. When petitioner instituted the action for reversion of
title in 1995, Lot No. 398 had already been transferred by succession to private
respondents who are Filipino citizens.

Since Lot No. 398 has already been transferred to Filipino citizens, the flaw in the original
transaction is considered cured.[13] As held in Chavez v. Public Estates Authority:[14]

Thus, the Court has ruled consistently that where a Filipino citizen sells land to an alien
who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the
subsequent sale to a citizen. Similarly, where the alien who buys the land subsequently
acquires Philippine citizenship, the sale was validated since the purpose of the
constitutional ban to limit land ownership to Filipinos has been achieved. In short, the law
disregards the constitutional disqualification of the buyer to hold land if the land is
subsequently transferred to a qualified party, or the buyer himself becomes a qualified
party.[15] (Emphasis supplied)
Clearly, since Lot No. 398 has already been transferred to private respondents who are
Filipino citizens, the prior invalid sale to Lee Liong can no longer be assailed. Hence,
reversion proceedings will no longer prosper since the land is now in the hands of Filipino
citizens.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 12 July 2002 and the
Resolution dated 9 May 2003 of the Court of Appeals in CA-G.R. CV No. 53890.

SO ORDERED.

Puno, C.J., (Chairperson), Corona, Azcuna, and Leonardo-De Castro, JJ., concur.

--------------------------------------------------------------------------------
[1] Under Rule 45 of the 1997 Rules of Civil Procedure.

[2] Penned by Associate Justice Rebecca de Guia-Salvador with Associate Justices

Godardo A. Jacinto and Eloy R. Bello, Jr., concurring.

[3] 99 Phil. 427 (1956).

[4] 167 Phil. 164 (1977).

[5] Lee v. Republic of the Philippines, 418 Phil. 793 (2001).

[6] Records, pp. 1-4.

[7] Rollo, pp. 35-43.

[8] Id. at 45-46.

[9] 214 Phil. 68 (1984).

[10] 418 Phil. 793 (2001).

[11] Id. at 802.

[12] Supra note 3.

[13] Halili v. CA, 350 Phil. 906 (1998); United Church Board for World Ministries v.
Sebastian, No. L-34672, 30 March 1988, 159 SCRA 446.

[14] 451 Phil. 1 (2003).

[15] Id. at 47.

FIRST DIVISION
[ G.R. No. 161211, July 17, 2013 ]
SPOUSES CELSO DICO, SR. AND ANGELES DICO, PETITIONERS, VS. VIZCAYA
MANAGEMENT CORPORATION, RESPONDENT.

DECISION
BERSAMIN, J.:

The prescription of actions for the reconveyance of real property based on implied trust
is 10 years.

The Case

This appeal by petition for review on certiorari seeks to set aside the adverse decision
promulgated on September 11, 2002,[1] whereby the Court of Appeals (CA) reversed the
decision rendered by the Regional Trial Court (RTC) of Negros Occidental in favor of
petitioners.

Antecedents

Celso Dico was the registered owner of Lot No. 486 of the Cadiz Cadastre, comprising an
area of 67,300 square meters and covered by Transfer Certificate of Title (TCT) No. 22922
of the land records of Negros Occidental. Lot No. 486 was adjacent to Lot No. 29-B and
Lot No. 1412 (formerly Lot No. 1118-B), both also of the Cadiz Cadastre. Celso and his
wife Angeles resided on Lot No. 486 since 1958. On May 30, 1964, Angeles filed in the
District Office of the Bureau of Lands in Bacolod City, her free patent application covering
a portion of Lot No. 29-B. On his part, Celso also filed in the same office an application for
free patent covering Lot No. 1412. It does not appear, however, that the Bureau of Lands
acted on their applications.[2]

Respondent Vizcaya Management Corporation (VMC) was the registered owner under
TCT No. T-41835 of Lot No. 29-B, also of the Cadiz Cadastre, comprising an area of
369,606 square meters, more or less.[3] VMC derived its title to Lot No. 29-B from
Eduardo and Cesar, both surnamed Lopez, the registered owners under TCT No. T-14827,
which emanated from TCT No. RT-9933 (16739) in the names of Victoria, Eduardo and
Cesar, all surnamed Lopez. TCT No. RT-9933 (16739) was a transfer from TCT No. T-
14281, which had been transferred from Original Certificate of Title (OCT) No. 21331 in
the name of Negros Philippines Lumber Company. OCT No. 21331 was issued pursuant to
Decree No. 190483 of G.L.R.O. Cadastral Record No. 196.

VMC likewise claimed to be the owner of Lot No. 1412, formerly known as Lot No. 1118-B,
also of the Cadiz Cadastre, containing an area of 85,239 square meters, more or less,
and registered in its name under TCT No. T-41834.[4]

Lot Nos. 1426-B, with an area of 6,635 square meters covered by TCT No. T-24135, and
1426-C, with an area of 6,107 square meters covered by TCT No. T-24136, appear to be
registered in the names of Eduardo Lopez and Cesar Lopez, who had earlier formed VMC.

In 1967, VMC, then newly formed, caused the consolidation and subdivision of Lot No.
29-B, Lot No. 1412, Lot No. 1426-B, and Lot No. 1426-C. The consolidation-subdivision
plan was prepared by Engr. Ricardo Quilop and filed in the Land Registration Commission
(LRC), renamed National Land Titles and Deeds Registration Administration, but presently
known as the Land Registration Authority. The consolidation-subdivision plan was
assigned the number (LRC) PCS-6611. On July 26, 1967, LRC Commissioner Antonio L.
Noblejas approved the consolidation-subdivision plan, resulting in Lot No. 29-B, Lot No.
1412, Lot No. 1426-B, and Lot No. 1426-C being consolidated and subdivided as follows:
Lot No. 1 with an area of 238,518 square meters under TCT No. T-47854; Lot No. 2 with
an area of 216,176 square meters under TCT No. T-47855; Lot No. 3 with an area of
11,496 square meters under TCT No. T-47856; and Lot No. 4 with an area of 15,392
square meters under TCT No. T-47857.[5] In all, the total landholding of VMC after the
consolidation was 481,583 square meters.
VMC proceeded to develop the Don Eusebio Subdivision project using Lot No. 1 of the
consolidation-subdivision plan under (LRC) PCS-6611. The subdivision plan under PSD-
102560 subdivided Lot No. 1 into 547 small lots. Subsequently, VMC also developed the
Cristina Village Subdivision project using Lots Nos. 2, 3, and 4 under (LRC) PCS-6611.
Under PSD-12746 of the subdivision plan for Cristina Village Subdivision, consolidated
Lots Nos. 2, 3, and 4 were subdivided into 348 small lots. Starting 1971, VMC sold lots in
its Don Eusebio Subdivision and Cristina Village Subdivision.

In 1981, VMC filed against the Dicos a complaint for unlawful detainer in the City Court of
Cadiz (Civil Case No. 649). On April 24, 1981, the City Court of Cadiz rendered its
decision in favor of VMC, ordering the Dicos to demolish the concrete water gate or
sluice gate (locally known as trampahan) located inside Lot No. 1, Block 3 of the Cristina
Village Subdivision. Inasmuch as the Dicos did not appeal, the decision attained finality.
On July 3, 1981, the City Court of Cadiz issued a writ of execution. On November 11,
1985, a second alias writ of execution was issued.

On May 12, 1986, the Dicos commenced an action for the annulment and cancellation of
the titles of VMC (Civil Case No. 180-C), impleading VMC, the National Land Titles and
Deeds Registration Administration, and the Director of the Bureau of Lands. On March 12,
1987, the Dicos amended the complaint. They averred, among others, that they were the
registered owners of Lot No. 486 and the possessors-by-succession of Lot No. 1412
(formerly Lot No. 1118) and Lot No. 489; that VMC had land-grabbed a portion of their
Lot No. 486 totaling 111,966 square meters allegedly brought about by the expansion of
Cristina Village Subdivision; and that on May 30, 1964 they had filed free patent
applications in the Bureau of Lands for Lot No. 1412 and Lot No. 489.[6] They prayed
that the possession of Lot No. 486, Lot No. 1412, and Lot No. 489 be restored to them;
and that the judgment in Civil Case No. 649 be annulled.

Celso died during the pendency of the action, and was substituted by Angeles and their
children pursuant to the order of November 22, 1991.

Ruling of the RTC

On January 8, 1998, the RTC ruled in favor of the Dicos, viz:

WHEREFORE, IN VIEW OF THE FOREGOING, judgement is rendered in favor of the

plaintiffs and against the defendants in this wise:

The plaintiffs are hereby declared absolute owners of the 111,959 square meter portion
of Lot 486 and the defendant Vizcaya Management Corporation, its agent,
representatives and any persons acting in its behalf are hereby ordered to peacefully
vacate the said premises and to turn over the possession of the 111, 959 square meters,
a portion of Lot 486 Cadiz Cadastre, in favor of the plaintiffs;

The Certificate of Titles from RT-9933 (16739) and all other titles derived therefrom are
all hereby declared spurious and ordered cancelled;

That defendant Vizcaya Management Corporation is hereby ordered to pay plaintiffs

P3,000.00 as monthly rental on the 111, 959 square meters, portion of Lot 486, Cadiz
Cadastre, which the defendant Vizcaya Management Corporation had occupied from May
12, 1986 until the plaintiffs property is fully restored to the latter;

That defendant Vizcaya Management Corporation is hereby ordered to pay the plaintiffs
the sum of P100,000.00 by way of attorneys fees and P100,000.00 by way of moral
damages and P50,000.00 for exemplary damages;
That defendant National Land Titles and Deeds Administration is hereby ordered to make
the necessary rectification on the titles of the defendants;

The Solicitor General is hereby directed to look into the possibility of reversion of Lots 29-
A, 29-B and 1412, Cadiz Cadastre in favor of the Government and initiate the Escheat
proceedings thereon;

The counterclaims of the defendants are ordered dismissed; and

Defendants to pay the costs.

SO ORDERED.[7]

Ruling of the CA

On appeal, VMC assigned the following errors, to wit:

THE TRIAL COURT ERRED IN NOT DISMISSING PLAINTIFFS COMPLAINT FOR BEING
BARRED BY PRESCRIPTION AND/OR LACHES AND FOR LACK OF CAUSE OF ACTION.

II

THE TRIAL COURT ERRED IN CAPRICIOUSLY DISREGARDING THE CONCLUSIVENESS AND

INDEFEASIBILITY OF THE SUBJECT CERTIFICATES OF TITLE AND IN IGNORING WELL-
ENTRENCHED DOCTRINES, PRINCIPLES AND PRESUMPTIONS OF REGULARITY AND
VALIDITY ATTENDANT TO THEIR ISSUANCES.

III

THE TRIAL COURT ERRED IN HOLDING THAT IN THE CONSOLIDATION AND SUBDIVISION
OF THE LOTS COMPRISING THE EUSEBIO AND CRISTINA SUBDIVISIONS, VMC
UNJUSTIFIABLY INCREASED THE AREA OF LOT NO. 29-B AND ENCROACHED ON LOT 486.

IV

THE TRIAL COURT ERRED IN HOLDING THAT LOT NOS. 29-B AND 1412 REVERTED BACK
(sic) TO THE GOVERNMENT AND IN DIRECTING THE SOLICITOR GENERAL TO INITIATE
ESCHEAT PROCEEDINGS THEREON.

THE TRIAL COURT ERRED IN DECLARING THAT TRANSFER CERTIFICATE OF TITLE (TCT)
NO. RT-9933 (EXHIBIT K) IS A SPURIOUS TITLE AND IN ORDERING SAID TITLE, AND ALL
TITLES DERIVED THEREFROM, CANCELLED.

VI
THE TRIAL COURT ERRED IN RULING THAT THERE WAS FRAUD IN VMCS ACQUISITION OF
LOT NOS. 29-B AND 1412.

VII

THE TRIAL COURT ERRED IN NOT FINDING THAT THE DESIGNATION OF LOT NO. 1246-B
AND 1246-C IN THE TECHNICAL DESCRIPTIONS OF THE TITLES OF LOT NOS. 1 TO 4 IS
MERELY TYPROGRAPHICAL ERROR.

VIII

THE TRIAL COURT ERRED IN ORDERING VMC TO PAY RENTALS, DAMAGES AND COSTS TO
PLAINTIFFS AND IN DISMISSING THE COUNTERCLAIMS PLEADED BY VMC.[8]

As earlier mentioned, the CA reversed the RTC through its decision promulgated on
September 11, 2002,[9] ruling as follows:

WHEREFORE, in view of the foregoing, and finding the appeal impressed with merit, the
same is hereby GRANTED. The Decision dated January 8, 1998 of Branch 60 of the
Regional Trial Court of Negros Occidental in Civil Case No. 180-C is hereby REVERSED
and SET ASIDE, and a new judgment is hereby rendered as follows:

Civil Case No. 180-C is DISMISSED for lack of merit.

Defendant-appellant Vizcaya Management Corporation is declared the absolute owner of

Lot No. 29-B under TCT No. T-41835.

Defendant-appellant Vizcaya Management Corporation is declared the absolute owner of

Lot No. 1412 under TCT No. T-41834.

Original Certificate of Title No. 21331 and Transfer Certificate of Title No. RT-9933
(16739) are declared valid and genuine;

Plaintiffs-appellees Angeles Dico, et al. are declared the absolute owners of Lot No. 486
under TCT No. T-22922;

The Decision dated April 24, 1981 of the City Court of Cadiz in Civil Case No. 649 is
hereby declared VALID and UPHELD; and

No cost.

SO ORDERED.[10]

On October 7, 2003, the CA denied the Dicos motion for reconsideration.[11]

Issues

Hence, this appeal, wherein the Dicos contend that the CA erred in holding that
prescription and/or laches already barred them from asserting their right;[12] in
accepting the theory of VMC that the consolidation of Lot No. 1246-B and Lot No. 1246-C
had resulted from a merely typographical error;[13] in reversing the decision of the RTC
despite its finding that VMC had committed land grabbing;[14] and in reversing the RTC
based on non-existing evidence that was contradicted by the evidence on records.[15]

In its comment,[16] VMC counters that the petition for review should not be given due
course because petitioners came to court with unclean hands; that the petition was filed
out of time even with the extension given by the Court; that the petition was fatally
defective in form and in substance; and that the dismissal of the complaint was in accord
with applicable laws and jurisprudence.

In their reply,[17] the Dicos reiterate that the findings and conclusions of the RTC were
supported by evidence establishing fraud, encroachment and other anomalies
perpetrated by VMC; that the rules of procedure must not be rigidly applied to override
substantial justice; and that VMC could not validly invoke the indefeasibility of its titles to
defeat their right over the encroached land.

The decisive issue is whether prescription already barred petitioners cause of action. All
the other issues are subsumed therein.

Ruling

We find and hold that the action of the Dicos for reconveyance was properly dismissed.

To start with, the CAs explanations for reversing the RTC were very thorough, well-
founded and well-reasoned, to wit:

Granting arguendo that fraud intervened in the procurement of the Certificates of Title to
Lot No. 29-B and plaintiffs-appellees had the personality to seek the reconveyance
thereof on the basis of implied or constructive trust, their complaint filed on May 12,
1986, or about 29 years after the issuance of the certificate of title to defendant-
appellant, indeed came too late. They were deemed to have discovered the fraud as
early as September 20, 1934 when TCT No. RT-9933 (16739) of the Lopezes was
recorded or on November 10, 1956 when TCT No. T-41835 of defendant-appellant was
registered. Their right to seek reconveyance of a portion of Lot No. 29-B, if it existed at
all, had already prescribed.

Plaintiffs-appellees also contend that defendant-appellant secured its Certificate of Title

to Lot No. 1412 through fraud. They contend that Celso Dico had filed with the Bureau of
Lands his Free Patent Application (Exh. D, pp. 733-735, Records Vol. 3) with respect to
Lot No. 1412. On the other hand, the evidence on record shows that Lot No. 1412,
formerly Lot No. 1118-B, appears to have been already registered in the name of
defendant-appellant under TCT No. T-41834 (Exh. 11).

We fail to see the fraud allegedly committed by defendant-appellant in securing its

Certificate of Title to Lot No. 1412. In their vain effort to show that Celso Dico filed a Free
Patent Application for Lot No. 1412, plaintiffs-appellees presented his alleged Free Patent
Application, Exhibit D. Said Exhibit D, however, is without evidentiary weight since
while the name of plaintiff-appellee Angeles Dico, as applicant therein, appears in the
Application for Free Patent, the Joint Affidavit in support thereof, and Notice of
Application for Free Patent, the signature of one Celso Dico was only clearly super-
imposed thereon to make it appear he was the applicant. Exhibit D is, in fact, a forged
document.

Thus, the court a quo erred when it concluded that defendant-appellants title to Lot No.
1412 came from a doubtful source. There is no evidence on record that clearly showed
the fraud allegedly employed by defendant-appellant when it secured its title to Lot No.
1412. Moreover, plaintiffs-appellees have not established their personality to seek the
reconveyance of Lot No. 1412 as they are not the registered owners thereof.
In fine, Lots Nos. 29-B and 1412 did not revert to the government, as they are already
the private properties of defendant-appellant corporation.

Anent the issue of encroachment on Lot No. 486 by defendant-appellant, the court a quo
found that defendant-appellant encroached on Lot 486 when it consolidated and
subdivided the contested lots.

The court a quo ruled, thus:

From the evidence presented as revealed by the records of the case, this Court is of the
judicious finding that defendant Viscaya (sic) had encroached on lot 486 considering that
even if it claims it has a title over lot 29-B, still it had exceeded its area of possession
over lot 29-B. Exhibits J, K and L reveal that lot 29-B only contains an area of
369,606 square meters, however, when defendant Vizcaya caused the consolidation of
their lots the total area which is supposed to be 369,606 square meters was increased.
Basing on defendants exhibits 3 to 6 this Court finds that TCT No. 1735 (lot 1) has
an area of 238,518 square meters, TCT No. 1736 (Lot 2), 216,176 square meters, TCT No.
1737 (Lot 3) 11,496 square meters and TCT No. 1738, 15,392 square meters which when
added together will sum up to a total of 481,582 square meters, clearly exceeding the
original area of 369,606 square meters appearing and described in Exhibits J:, K and
L.

Likewise, this Court further finds after an exhausted (sic) examination of the records,
that defendant Vizcaya increased the area on the plan of Cristina Village Subdivision
which is Lot 2 contrary to what is contained in TCT No. 1736 (Exhibits P-1 and 4)
containing an area of only 216,176 square meters.

The increase in area in the title of defendant Vizcaya is 111,976 square meters. This
area was taken from the portion of Lot 486 of the plaintiffs covered by TCT No. T-22922
(Exh. E) and which was derived from OCT No. 0-3146 (21337) adjacent to Lot 29-B
(Exh. J) and later became Lot 2 covered by TCT No. (T-47855) 1736, Lot 1 covered by
TCT No. (T-47854) 1735 (Exh. P) Lot 3 covered by TCT No. (T-47856) 1737 (Exh. P-2)
and Lot 4 covered by TCT No. (T-47857) 1738 (Exh. P-3). To the mind of this Court, the
intrustion (sic) of the defendants over the area of Lot 486 is a clear and willful
manipulation hatched between defendant Vizcaya and its surveyor without regard to the
existing technical and (sic) descriptions of the adjacent lot, particularly the lot belonging
to the plaintiffs. Upon close examination of all the evidence on record, it appears that the
method and scheme employed in order to hide and confuse the increase in the area was
to consolidate lots 29-B, 1246-B, 1246-C and 1412 and then subdivide these lots into
several parts to become lots 1, 2, 3 and 4 with its corresponding titles, technical
descriptions and already containing variable but increased areas can no longer be
ascertained or if ascertained the same can be done with greater difficulty as the one
tasked to unravel these confusing mazes (sic) of lots will have to dig deep into the
history of the original titles. What this Court finds amusing, however, is the fact that Lots
1246-B and 1246-C were consolidated with Lots 29-B and 1412 which former lots are
located in Barangay Tinampa-an, Cadiz City while Lots 29-B and 1412 are located in the
City Proper and are non adjacent or contigeous (sic) lots.

The claim of the defendants that the plaintiffs cannot establish a better right or title to
real properties over and above a valid and existing title, cannot be given credence by
this Court considering that a torrens title cannot cover fraud, and more particularly so,
because Lot 486 is also titled property registered in the name of the plaintiff Dico. (pp.
30-31, Decision; pp. 79-80, Rollo)

We do not agree with the above findings of the court a quo. The documentary evidence
found in the records reveals that defendant-appellant had two lots titled in its name,
namely: Lot No. 29-B comprising an area of 369,606 square meters, containing identical
technical description as appearing in plaintiffs-appellees Exhs. J, K and L and Lot
No. 1412, formerly 1118-B, comprising an area of 85,239 square meters covered by TCT
No. T-41834 (Exh. 11). Further, Eduardo and Cesar Lopez were the registered owners of
Lot No. 1426-B comprising an area of 6,635 square meters, covered by TCT No. T-21435
(Exh. 9) and Lot No. 1426-C comprising an area of 6,107 square meters, covered by
TCT No. T-21436 (Exh. 10). As contended by defendant-appellant, it caused the
consolidation and subdivision of these four lots following the approved consolidation-
subdivision plan (Exh. 7, p. 958, Records Vol. 4) it submitted to the then Land
Registration Commission. The said approved consolidation-subdivision plan was assigned
the number (LRC) PCS-6611. Hence, adding the land area of the four consolidated lots,
the total landholding of defendant-appellant after the approved consolidation-subdivision
plan would be 467,587 square meters only, thus:

Lot No. Area in Square Meters

Lot No. 29-B 369,606 square meters
Lot No. 1412 85,239 square meters
Lot No. 1426-B 6,635 square meters
Lot No. 1426-C 6,107 square meters
Total 467,587 square meters

Defendant-appellants approved consolidation-subdivision plan (Exh. 7) reveals that it

was a consolidation-subdivision of Lots Nos. 29-B (Exh. L; Exh. 8), PSD-5573; 1426-B
(Exh. 9) & 1426-C (Exh. 10), PSD-44080, and 1412 (Exh. 11), all of Cadiz Cadastre,
which contained a total area of 481,583 square meters. However, the total land area of
the four consolidated lots as added above is only 467,587 square meters. Clearly, there
exists an excess of 13,996 square meters, which was included in the approved
consolidation-subdivision plan of defendant-appellant. Worth noting is the fact that
defendant-appellants approved consolidation-subdivision plan contained a handwritten
entry which stated that the x x x area is increased by 13996 sq.m (Exh. 7, p. 958,
Records Vol. 4).

Thus, the court a quo erred when it concluded that there was an excess of 111,959
square meters in defendant-appellants landholdings. We agree with the contention of
defendant-appellant that the basis for computing its total landholding should not be
limited to the land area of Lot No. 29-B since three (3) other individual lots were included
in the consolidation-subdivision survey. The evidence on record reveals that Lots Nos.
1412, 1426-B and 1426-C were included in the approved consolidation-subdivision plan
(Exh. 7).

Further, the Trial Courts finding that defendant-appellant encroached by 111,959 square
meters on Lot 486 belonging to plaintiffs-appellees finds no justifiable support from the
evidence on record. Lot No. 486 under TCT No. T-22922 (Exh. E, p. 736, Records Vol. 3)
in the name of Celso Dico contained an area of 67,300 square meters only. Following the
Trial Courts reasoning, defendant-appellant shall return to plaintiffs-appellees 111,959
square meters it allegedly land grabbed from Lot No. 486. Thus, Lot No. 486 would now
contain an area of 179,259 square meters, substantially increased by 111,959 square
meters which is clearly beyond what is stated in TCT No. T-22922.

As We have found earlier, the excess in defendant-appellants landholding is only 13,996

square meters.

It is likewise the contention of plaintiffs-appellees that PCS-6611 does not exist in the
records of the then Land Registration Commission, as evidenced by the Certifications
(Exhs. Q and R, pp. 758-758A, Records Vol. 3) issued by the Subdivision and
Consolidation Division, Vault Section I, Land Registration Authority.

The court a quo ruled:

x x x. Thus, the defendants failed to overcome the preponderance of evidence

presented by the plaintiffs, particularly on Certifications (Exhs. Q and R) certifying to
the effect that Pcs-6611 is not existing x x x (p. 34, Decision).

We cannot agree with conclusion of the court a quo. The evidence on record clearly
reveals that defendant-appellant presented a copy of the approved consolidation-
subdivision plan (Exh. 7) prominently showing the number (LRC) PCS-6611 assigned by
the Land Registration Commission, which is located at the bottom-right portion of the
document. The Certifications (Exhs. Q and R) issued by the then Land Registration
Authority are not conclusive proof of the non-existence of the original of the
consolidation-subdivision plan (LRC) PCS-6611 together with all the survey records
pertaining thereto. As correctly pointed out by defendant-appellant, the person who
issued said certifications was not presented in court to identify and affirm the veracity of
their contents. Thus, as between the approved consolidation-subdivision plan (Exh. 7)
and the certifications (Exhs. Q and R), the former carries greater evidentiary weight.

Granting arguendo that no records pertaining to (LRC) PCS-6611 could be found in the
Vault Section of the then Land Registration Commission, the existence of (LRC) PCS-6611
was already established with the presentation in evidence of a copy of the said approved
consolidation-subdivision plan (Exh. 7) prominently reflecting therein the number
(LRC) PCS-6611 assigned by the Land Registration Commission. The authenticity and
existence of (LRC) PCS-6611 within the records of the Land Registration Commission
(now Land Registration Authority) was established by the fact that it was used as a basis
for the approval of the consolidation-subdivision plan for the Don Eusebio Subdivision
under (LRC) PSD-102560 (Exh. 14, 14-A, 14-B, pp. 983-985, Records, Vol. 4) and
Cristina Village Subdivision under (LRC) PCS-12746 (Exh. 16, p. 982, Records, Vol. 4). In
Exhibits 14 and 16, (LRC) PCS-6611 was clearly reflected as the source of the
consolidated lots.

Lastly, defendant-appellant contends that the court a quo erred in finding that there was
no typographical error committed in designating Lots Nos. 1246-B and 1246-C instead of
1426-B and 1426-C, respectively, in its approved consolidation-subdivision plan.

The court a quo ruled:

x x x. What this Court finds amusing, however, is the fact that Lots 1246-B and 1246-C
were consolidated with Lots 29-B and 1412 which former lots are located in Barangay
Tinampa-an, Cadiz City while Lots 29-B and 1412 are located in the City Proper and are
non adjacent or contigeous (sic) lots.

x x x x

Granting arguendo, that the denomination of Lots 1246-B and 1246-C are merely
typographical errors of Lots 1426-B and 1426-C as claimed by defendant Vizcaya, this
Court, upon judicious evaluation of the records cannot accept the argument relied upon
by the defendants since it is obvious from the evidence that defendant Vizcaya employs
a retained surveyor for purposes of their subdivision, and despite the technical
knowledge of its surveyor it did not bother to correct the error if indeed it is one, on the
lots subject matter of the case, but had invoked the said ground only during the litigation
proper (pp. 30-35, Decision; pp. 179-184, Rollo).
Defendant-appellant contends that it failed to correct this typographical error as such
fact came to its knowledge only during the trial and two years after issuance of TCT No.
T-47854-57 (Exhs. P, P-1 to P-3; Exhs. 3 to 6, pp. 750-756 Records Vol. 3),
these Certificates of Title were subsequently cancelled and new TCTs were issued. On the
other hand, plaintiffs-appellees contend that Lots Nos. 1246-B and 1246-C could not be
possibly consolidated with Lot No. 29-B because the former lots were situated some 4
kilometers away from defendant-appellants subdivision area, besides being owned by
other persons.

We agree with defendant-appellant.

While we agree with plaintiffs-appellees assertion that consolidation of non-contiguous

and non-adjacent lots are not possible especially so when the lots are situated
considerably far from each other, the case at hand does not fall under this scenario. As
correctly explained by defendant-appellant there was a typographical error in the
technical description of its consolidated lots in that what was stated therein as included
in the consolidation plan were Lots Nos. 1246-B and 1246-C, Psd-44080, instead of Lots
Nos. 1426-B and 1426-C, Psd-44080.

Worth noting are the technical description of the subject lots before and after their
consolidation.

Transfer Certificate of Title No. T-24135 (Exh. 9) covering Lot No. 1426-B reads:

A parcel of land (Lot No. 1426-B of the subdivision plan Psd-44080, being a portion of
Lot 1426 of the Cadastral Survey of Cadiz, G.L.R.O. Cad. Record No. 196), situated in the
Poblacion, Municipality of Cadiz, Province of Negros Occidental, Bounded on the NE., by
Lot 1426-A of the subdivision plan; on the SE., by Lot No. 1423 of Cadiz, Cad.; and on the
SW., by Lot 1426-C of the subdivision plan. x x x
Transfer Certificate of Title No. T-24136 (Exh. 10) covering Lot No. 1426-C reads.

A parcel of land (Lot No. 1426-C of the subdivision plan Psd-44080, being a portion of
Lot 1426 of the Cadastral Survey of Cadiz, G.L.R.O. Cad. Record No. 196), situated in the
Poblacion, Municipality of Cadiz, Province of Negros Occidental, Bounded on the NE., by
Lot 1426-B of the subdivision plan; on the SE., by Lot 1423 of Cadiz Cad., and on the SW.,
by Calle Cabahug. x x x.
On the other hand, the technical descriptions of the properties covered by Transfer
Certificates of Title Nos. T-47854 to T-47857 pertaining to Lot Nos. 1 to 4 (Exhs. P, P-1
to P-3) read:

Transfer Certification of Title No. T-14754:

A parcel of land (Lot 1 of the consolidation-subdivision plan (LRC) Pcs-6611, being a

portion of the consolidation of Lots 29-B, Psd-5573, 1246-B, & 1246-C, Psd-44080 &
1412, Cadiz Cad., LRC (GLRO) Cad. Rec. No. 196), situated in the City of Cadiz, Island of
Negros x x x containing an area of two hundred thirty-eight thousand five hundred
eighteen (238, 518) square meters, more or less. x x x.
Transfer Certificate of Title No. T-14755:

A parcel of land (Lot 2 of the consolidation-subdivision plan (LRC) Pcs-6611, being a

portion of the consolidation of Lots 29-B, Psd-5573, 1246-B, & 1246-C, Psd-44080 &
1412, Cadiz Cad., LRC (GLRO) Cad. Rec. No. 196, situated in the City of Cadiz, Island of
Negros x x x containing an area of TWO HUNDRED SIXTEEN THOUSAND ONE HUNDRED
SEVENTY-SIX (216,176) Square Meters, more or less. x x x.
Transfer Certificate of Title No. T-14756:

A parcel of land (Lot 3 of the consolidation-subdivision plan (LRC) Pcs-6611, being a

portion of the consolidation of Lots 29B, Psd-5573, 1246-B, & 1246-C, Psd-44080 & 1412,
Cadiz Cad., LRC (GLRO) Cad. Rec. No. 196), situated in the City of Cadiz, Island of Negros
x x x containing an area of eleven thousand four hundred ninety-six (11,496) square
meters, more or less. x x x.
Transfer Certificate of Title No. T-14757:

A parcel of land (Lot 4 of the consolidation-subdivision plan (LRC) Pcs-6611, being a

portion of the consolidation of Lots 29-B, Psd-5573, 1246-B, & 1246-C, Psd-44080 &
1412, Cadiz Cad., LRC (GLRO) Cad. Rec. No. 196), situated in the City of Cadiz, Island of
Negros. Bounded on the NE., points 31 to 1 and 1 to 6 by Lot 1426-A, Psd-44080 x x x
containing an area of fifteen thousand three hundred ninety-two (15,932) square meters,
more or less. x x x.
As can be gleaned clearly from the foregoing, Lots Nos. 1426-B and 1426-C came from
Psd-44080. In the same way that Lots Nos. 1246-B and 1246-C came from Psd-44080.
Defendant-appellant submitted a certified copy of the Cadastral Map of Cadiz (Exh. 12,
p. 986, Records Vol. 4) showing that adjacent to Lot No. 29-B was Lot No. 1426 and being
continguous, these lots could be consolidated. Even plaintiffs-appellees witness Engr.
Luvimin Canoy testified on the possibility that a typographical error might have been
committed in listing the lot numbers in the title (pp. 39-41, TSN, September 9, 1992).
There was no evidence to the effect that defendant-appellant caused the erroneous
designation of Lots Nos. 1426-B and 1426-C as Lots Nos. 1246-B and 1246-C,
respectively, when it consolidated these lots. The error indeed was only typographical as
the subject lots all came from Psd-44080. In the absence of evidence that defendant-
appellant employed fraud in consolidating these lots, a typographical error in the
designation of lot numbers in the Certificates of Title would not warrant their
cancellation. An amendment may cure the error. It has been aptly ruled in one case that
in the interest of justice and equity, the title-holder may not be made to bear the
unfavorable effect of the mistake or negligence of the States agents, in the absence of
proof of his complicity in a fraud or of manifest damage to third persons (Republic vs.
Court of Appeals, 301 SCRA 366).[18]

We have examined the factual bases of the CA in reaching its decision, and have found
that its aforequoted findings of fact and conclusions were based on the evidence
presented at the trial. In view of this, the Court accepts the findings of fact and
conclusions of the CA, not just because we are not a trier of facts, but, more importantly,
because the CA creditably performed its main task of conducting a thorough review of
the evidence and records of the case in order to eruditely and carefully address each of
the issues raised and argued by the Dicos.

Secondly, the CA correctly pointed out that under Article 1456 of the Civil Code, the
person obtaining property through mistake or fraud is considered by force of law a
trustee of an implied trust for the benefit of the person from whom the property comes.
Under Article 1144, Civil Code, an action upon an obligation created by law must be
brought within 10 years from the time the right of action accrues. Consequently, an
action for reconveyance based on implied or constructive trust prescribes in 10 years.

Here, the CA observed that even granting that fraud intervened in the issuance of the
transfer certificates of title, and even assuming that the Dicos had the personality to
demand the reconveyance of the affected property on the basis of implied or
constructive trust, the filing of their complaint for that purpose only on May 12, 1986
proved too late for them.

That observation was correct and in accord with law and jurisprudence. Verily, the
reckoning point for purposes of the Dicos demand of reconveyance based on fraud was
their discovery of the fraud. Such discovery was properly pegged on the date of the
registration of the transfer certificates of title in the adverse parties names, because
registration was a constructive notice to the whole world.[19] The long period of 29 years
that had meanwhile lapsed from the issuance of the pertinent transfer certificate of title
on September 30, 1934 (the date of recording of TCT No. RT-9933 (16739) in the name of
the Lopezes) or on November 10, 1956 (the date of recording of TCT No. T-41835 in
VMCs name) was way beyond the prescriptive period of 10 years.

And, lastly, the insistence of the Dicos that prescription could not be used by the CA to
bar their claim for reconveyance by virtue of VMCs failure to aver them in a motion to
dismiss or in the answer was unwarranted.

We agree with VMCs contention to the contrary. Although defenses and objections not
pleaded in a motion to dismiss or in an answer are deemed waived, it was really
incorrect for the Dicos to insist that prescription could not be appreciated against them
for that reason. Their insistence was contrary to Section 1, Rule 9 of the Rules of Court,
which provides as follows:

Section 1. Defenses and objections not pleaded.- Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action pending between the same parties
for the same cause, or that the action is barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim. (2a)
Under the rule, the defenses of lack of jurisdiction over the subject matter, litis
pendentia, res judicata, and prescription of action may be raised at any stage of the
proceedings, even for the first time on appeal, except that the objection to the lack of
jurisdiction over the subject matter may be barred by laches.[20]

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals promulgated on
September 11, 2002; and ORDERS the petitioners to pay the costs of suit.

SO ORDERED.

Sereno, C.J., Leonardo-De Castro, Villarama, Jr., and Reyes, JJ., cocnur.

--------------------------------------------------------------------------------
[1] Rollo, p. 46-75; penned by Associate Justice Sergio L. Pestao (retired/deceased), with
Associate Justice Teodoro P. Regino (retired) and Associate Justice Eloy R. Bello, Jr.
(retired) concurring.

[2] Id. at 48.

[3] Id. at 48 and 78.

[4] Id. at 49.

[5] Id. at 50.

[6] Id. at 51-52.

[7] Id. at 139.

[8] Id. at 52-53.

[9] Id. at 46-75.

[10] Id. at 73-74.

[11] Id. at 76.

[12] Id. at 26.

[13] Id. at 30-31.

[14] Id. at 32.

[15] Id. at 34.

[16] Id. at 301-329.

[17] Id. at 335-351.

[18] Id. at 61-72.

[19] Lopez v. Court of Appeals, G.R. No. 157784, December 16, 2008, 574 SCRA 26, 39.

[20] See Tijam v. Sibonghanoy, No. L-21450, April 15, 1968, 23 SCRA 29, 34-35.

FIRST DIVISION
[ G.R. No. 128195, October 03, 2001 ]
ELIZABETH LEE AND PACITA YU LEE, HON. JUDGE JOSE D. ALOVERA,* PRESIDING JUDGE,
REGIONAL TRIAL COURT, BRANCH 17, ROXAS CITY, THE REGISTER OF DEEDS OF ROXAS
CITY, PETITIONERS, VS. REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE DIRECTOR
OF LANDS AND THE ADMINISTRATOR, LAND REGISTRATION AUTHORITY AND THE HON.
COURT OF APPEALS,* RESPONDENTS.

DECISION

PARDO, J.:

The case under consideration is a petition for review on certiorari of the decision[1] of
the Court of Appeals nullifying that of the Regional Trial Court, Roxas City, in
Reconstitution Case No. R-1928,[2] pertaining to Lot 398, Capiz Cadastre, covered by
Original Certificate of Title No. 3389.

Sometime in March 1936, Rafael, Carmen, Francisco, Jr., Ramon, Lourdes, Mercedes,
Concepcion, Mariano, Jose, Loreto, Manuel, Rizal and Jimmy, all surnamed Dinglasan sold
to Lee Liong, a Chinese citizen, a parcel of land with an approximate area of 1,631
square meters, designated as Lot 398 and covered by Original Certificate of Title No.
3389, situated at the corner of Roxas Avenue and Pavia Street, Roxas City.[3]

However, in 1948, the former owners filed with the Court of First Instance, Capiz an
action against the heirs of Lee Liong for annulment of sale and recovery of land.[4] The
plaintiffs assailed the validity of the sale because of the constitutional prohibition against
aliens acquiring ownership of private agricultural land, including residential, commercial
or industrial land. Rebuffed in the trial court and the Court of Appeals, plaintiffs
appealed to the Supreme Court. On June 27, 1956, the Supreme Court ruled thus:

"... granting the sale to be null and void and can not give title to the vendee, it does not
necessarily follow therefrom that the title remained in the vendor, who had also violated
the constitutional prohibition, or that he (vendor) has the right to recover the title of
which he has divested himself by his act in ignoring the prohibition. In such contingency
another principle of law sets in to bar the equally guilty vendor from recovering the title
which he had voluntarily conveyed for a consideration, that of pari delicto."[5]

On July 1, 1968, the same former owners Rafael A. Dinglasan, together with Francisco,
Carmen, Ramon, Lourdes, Mercedes, Concepcion, Mariano, Jose, Loreto, Rizal, Jimmy, and
Jesse Dinglasan filed with the Court of First Instance, Capiz an action for recovery of the
same parcel of land.[6] Citing the case of Philippine Banking Corporation v. Lui She,[7]
they submitted that the sale to Lee Liong was null and void for being violative of the
Constitution. On September 23, 1968, the heirs of Lee Liong filed with the trial court a
motion to dismiss the case on the ground of res judicata.[8] On October 10, 1968, and
November 9, 1968, the trial court denied the motion.[9] The heirs of Lee Liong elevated
the case to the Supreme Court by petition for certiorari. On April 22, 1977, the Supreme
Court annulled the orders of the trial court and directed it to dismiss the case, holding
that the suit was barred by res judicata.[10]

On September 7, 1993, Elizabeth Manuel-Lee and Pacita Yu Lee filed with the Regional
Trial Court, Roxas City a petition for reconstitution of title of Lot No. 398 of the Capiz
Cadastre, formerly covered by Original Certificate of Title No. 3389 of the Register of
Deeds of Roxas City.[11] Petitioners alleged that they were the widows of the deceased
Lee Bing Hoo and Lee Bun Ting, who were the heirs of Lee Liong, the owner of the lot.
Lee Liong died intestate in February 1944. On June 30, 1947, Lee Liong's widow, Ang
Chia, and his two sons, Lee Bun Ting and Lee Bing Ho, executed an extra-judicial
settlement of the estate of Lee Liong, adjudicating to themselves the subject parcel of
land.[12] Petitioner Elizabeth Lee acquired her share in Lot No. 398 through an extra-
judicial settlement and donation executed in her favor by her deceased husband Lee
Bing Hoo. Petitioner Pacita Yu Lee acquired her share in the same lot by succession from
her deceased husband Lee Bun Ting, as evidenced by a deed of extra-judicial settlement.
[13]

Previously, on December 9, 1948, the Register of Deeds, Capiz, Salvador Villaluz, issued
a certification that a transfer certificate of title over the property was issued in the name
of Lee Liong.[14] However, the records of the Register of Deeds, Roxas City were burned
during the war. Thus, as heretofore stated, on September 7, 1968, petitioners filed a
petition for reconstitution of title.

On June 10, 1994, the Regional Trial Court, Roxas City, Branch 17, ordered the
reconstitution of the lost or destroyed certificate of title in the name of Lee Liong on the
basis of an approved plan and technical description.[15] The dispositive portion of the
trial court's decision reads thus:

"WHEREFORE, in reiteration, the Register of Deeds for the City of Roxas is ordered to
reconstitute the lost or destroyed certificate of title in the name of Lee Liong, deceased,
of Roxas City, with all the conditions stated in paragraph 2 of this decision. This decision
shall become final after the lapse of thirty (30) days from receipt by the Register of
Deeds and by the Commissioner of LRA of a notice of such judgment without any appeal
having been filed by any of such officials.

"SO ORDERED.

"Given at Roxas City, Philippines,

"June 10, 1994.

"JOSE O. ALOVERA
"Judge"[16]

On August 18, 1994, the Clerk of Court, Regional Trial Court, Roxas City, Branch 17
issued an Entry of Judgment.[17]

On January 25, 1995, the Solicitor General filed with the Court of Appeals a petition for
annulment of judgment in Reconstitution Case No. 1928, alleging that the Regional Trial
Court, Roxas City had no jurisdiction over the case.[18] The Solicitor General contended
that the petitioners were not the proper parties in the reconstitution of title, since their
predecessor-in-interest Lee Liong did not acquire title to the lot because he was a
Chinese citizen and was constitutionally not qualified to own the subject land.

On April 30, 1996, the Court of Appeals promulgated its decision declaring the judgment
of reconstitution void.[19]

On May 24, 1996, Elizabeth Manuel-Lee and Pacita Yu Lee filed with the Court of Appeals
a motion for reconsideration of the decision.[20] On February 18, 1997, the Court of
Appeals denied the motion.[21]

Hence, this petition.[22]

Petitioners submitted that the Solicitor General was estopped from seeking annulment of
the judgment of reconstitution after failing to object during the reconstitution
proceedings before the trial court, despite due notice. Petitioners alleged that the
Solicitor General merely acted on the request of private and politically powerful
individuals who wished to capitalize on the prime location of the subject land.

Petitioners emphasized that the ownership of the land had been settled in two previous
cases of the Supreme Court, where the Court ruled in favor of their predecessor-in-
interest, Lee Liong. Petitioners also pointed out that they acquired ownership of the land
through actual possession of the lot and their consistent payment of taxes over the land
for more than sixty years.

On the other hand, the Solicitor General submitted that the decision in the reconstitution
case was void; otherwise, it would amount to circumventing the constitutional
proscription against aliens acquiring ownership of private or public agricultural lands.

We grant the petition.

The reconstitution of a certificate of title denotes restoration in the original form and
condition of a lost or destroyed instrument attesting the title of a person to a piece of
land.[23] The purpose of the reconstitution of title is to have, after observing the
procedures prescribed by law, the title reproduced in exactly the same way it has been
when the loss or destruction occurred.[24]

In this case, petitioners sought a reconstitution of title in the name of Lee Liong, alleging
that the transfer certificate of title issued to him was lost or destroyed during World War
II. All the documents recorded and issued by the Register of Deeds, Capiz, which include
the transfer certificate of title issued in the name of Lee Liong, were all destroyed during
the war. The fact that the original of the transfer certificate of title was not in the files of
the Office of the Register of Deeds did not imply that a transfer certificate of title had not
been issued.[25] In the trial court proceedings, petitioners presented evidence proving
the sale of the land from the Dinglasans to Lee Liong and the latter's subsequent
possession of the property in the concept of owner. Thus, the trial court, after examining
all the evidence before it, ordered the reconstitution of title in the name of Lee Liong.

However, there is a question as to whether Lee Liong has the qualification to own land in
the Philippines.

The sale of the land in question was consummated sometime in March 1936, during the
effectivity of the 1935 Constitution. Under the 1935 Constitution,[26] aliens could not
acquire private agricultural lands, save in cases of hereditary succession.[27] Thus, Lee
Liong, a Chinese citizen, was disqualified to acquire the land in question.[28]

The fact that the Court did not annul the sale of the land to an alien did not validate the
transaction, for it was still contrary to the constitutional proscription against aliens
acquiring lands of the public or private domain. However, the proper party to assail the
illegality of the transaction was not the parties to the transaction.[29] "In sales of real
estate to aliens incapable of holding title thereto by virtue of the provisions of the
Constitution both the vendor and the vendee are deemed to have committed the
constitutional violation and being thus in pari delicto the courts will not afford protection
to either party."[30] The proper party to assail the sale is the Solicitor General. This was
what was done in this case when the Solicitor General initiated an action for annulment
of judgment of reconstitution of title. While it took the Republic more than sixty years to
assert itself, it is not barred from initiating such action. Prescription never lies against
the State.[31]

Although ownership of the land cannot revert to the original sellers, because of the
doctrine of pari delicto, the Solicitor General may initiate an action for reversion or
escheat of the land to the State, subject to other defenses, as hereafter set forth.[32]

In this case, subsequent circumstances militate against escheat proceedings because the
land is now in the hands of Filipinos. The original vendee, Lee Liong, has since died and
the land has been inherited by his heirs and subsequently their heirs, petitioners herein.
Petitioners are Filipino citizens, a fact the Solicitor General does not dispute.

The constitutional proscription on alien ownership of lands of the public or private

domain was intended to protect lands from falling in the hands of non-Filipinos. In this
case, however, there would be no more public policy violated since the land is in the
hands of Filipinos qualified to acquire and own such land. "If land is invalidly transferred
to an alien who subsequently becomes a citizen or transfers it to a citizen, the flaw in the
original transaction is considered cured and the title of the transferee is rendered
valid."[33] Thus, the subsequent transfer of the property to qualified Filipinos may no
longer be impugned on the basis of the invalidity of the initial transfer.[34] The objective
of the constitutional provision to keep our lands in Filipino hands has been achieved.

Incidentally, it must be mentioned that reconstitution of the original certificate of title

must be based on an owner's duplicate, secondary evidence thereof, or other valid
sources of the title to be reconstituted.[35] In this case, reconstitution was based on the
plan and technical description approved by the Land Registration Authority.[36] This
renders the order of reconstitution void for lack of factual support.[37] A judgment with
absolutely nothing to support it is void.[38]

As earlier mentioned, a reconstitution of title is the re-issuance of a new certificate of

title lost or destroyed in its original form and condition.[39] It does not pass upon the
ownership of the land covered by the lost or destroyed title.[40] Any change in the
ownership of the property must be the subject of a separate suit.[41] Thus, although
petitioners are in possession of the land, a separate proceeding is necessary to thresh
out the issue of ownership of the land.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals
in CA-G. R. SP No. 36274. In lieu thereof, the Court sets aside the order of reconstitution
of title in Reconstitution Case No. R-1928, Regional Trial Court, Roxas City, and dismisses
the petition, without prejudice.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.

Kapunan, J., on official leave.

--------------------------------------------------------------------------------
* Neither the judge nor the Court of Appeals is a proper party as petitioner or respondent
(Rule 45, Sec. 4, Revised Rules of Court).

[1] In CA-G. R. SP No. 36274, promulgated on April 30, 1996. Salas, J., ponente,
Caizares-Nye and Carpio-Morales, JJ., concurring.

[2] Dated June 10, 1994.

[3] Dinglasan v Lee Bun Ting, 99 Phil. 427, 429 [1956].

[4] Ibid., at p. 432.

[5] Dinglasan v Lee Bun Ting, supra, Note 3, p. 431.

[6] Civil Case No. V-3064.

[7] 21 SCRA 52 [1967].

[8] Lee Bun Ting v Aligaen, 76 SCRA 416, 420 [1977].

[9] Ibid., at pp. 421-422.

[10] Ibid., at p. 425.

[11] Comment, Rollo, pp. 148-160, at p. 149; Memorandum, Solicitor General, Rollo, pp.
199-211, at p. 199-200.
[12] CA Decision, Rollo, p. 82.

[13] Ibid.

[14] Petition, Annex "E" (Annex "2"), Rollo, p. 66.

[15] In Reconstitution Case No. R-1928, Regional Trial Court, Roxas City, Branch 17, Judge
Jose O. Alovera, presiding.

[16] Petition, Annex "A", Rollo, pp. 36-37.

[17] Petition, Annex "B", Rollo, p. 38.

[18] Docketed as CA-G. R. SP No. 36274. CA Rollo, pp. 1-11. On February 17, 1995, the
Republic filed an amended complaint, impleading the Administrator, Land Registration
Authority, as plaintiff (Docketed as CA-G. R. SP No. 36517, CA Rollo, pp. 57-65).

[19] CA Decision, CA Rollo, pp. 148-157.

[20] Petition, Annex "H", Rollo, pp. 90-100.

[21] Rollo, p. 117.

[22] Filed on April 3, 1997, Rollo, pp. 12-35. On July 12, 1999, we gave due course to
the petition (Rollo, pp. 182-183). The case was considered submitted for decision on
December 13, 1999 upon the filing of petitioner's memorandum (Rollo, pp. 216-226).

[23] Republic v Court of Appeals, 309 SCRA 110, 118 [1999]; Rivera v Court of Appeals,
314 Phil. 57 [1995].

[24] Republic v Court of Appeals, supra, Note 23; Heirs of Pinote v Dulay, 187 SCRA 12,
19-20 [1990].

[25] Alipoon v Court of Appeals, 364 Phil. 591, 597 [1999].

[26] Article XIII, Section 5, 1935 Constitution.

[27] Krivenko v. Register of Deeds, 79 Phil. 461 [1947]; Halili v Court of Appeals, 350 Phil.
906, 914-915 [1998].

[28] Ong Ching Po v Court of Appeals, 239 SCRA 341, 346 [1994].

[29] Lee Bun Ting v Aligaen, supra, Note 8. Dinglasan v Lee Bun Ting, supra, Note 3.

[30] Vasquez v Li Seng Giap, 96 Phil. 447, 451 [1955].

[31] Republic v. Court of Appeals, G. R. No. 95533, November 20, 2000, citing Reyes v
Court of Appeals, 356 Phil. 606, 624 (1998); Republic v. Court of Appeals, 171 SCRA 721,
734 (1989); de la Cruz v. Court of Appeals, 349 Phil. 898, 905 [1998].

[32] Rellosa v. Gaw Chee Hun, 93 Phil. 827 [1953].

[33] United Church Board of World Ministries v. Sebastian, 159 SCRA 446, 451-452
[1988].

[34] Halili v. Court of Appeals, supra, Note 27, at p. 917.

[35] Heirs of Eulalio Ragua v. Court of Appeals, 324 SCRA 7 [2000].

[36] Petition, Annex "A", Rollo, pp. 36-37.

[37] Heirs of Eulalio Ragua v. Court of Appeals, supra, Note 35.

[38] Yangco v. Court of First Instance of Manila, 29 Phil. 183, 191 [1915].

[39] Heirs of Eulalio Ragua v. Court of Appeals, supra, Note 35, at p. 23 [2000], citing
Strait Times Inc. v. Court of Appeals, 356 Phil. 217, 230 [1998]; Stilianopulos v. The City
of Legaspi, 316 SCRA 523, 538 [1999].

[40] Strait Times Inc. v Court of Appeals, supra, Note 39.

[41] Bunagan v. CFI of Cebu, Branch VI, 97 SCRA 72, 76 [1980].

FIRST DIVISION
[ G.R. No. 181623, December 05, 2012 ]
ALEJANDRO BINAYUG AND ANA BINAYUG, PETITIONERS, VS. EUGENIO UGADDAN,
NORBERTO UGADDAN, PEDRO UGADDAN, ANGELINA UGADDAN, TERESO UGADDAN,
DOMINGA UGADDAN, GERONIMA UGADDAN, AND BASILIA LACAMBRA, RESPONDENTS.

DECISION

LEONARDO-DE CASTRO, J.:

This Petition for Review on Certiorari under Rule 45 of the Rules of Court assails the
Decision[1] dated August 6, 2007 and Order[2] dated January 15, 2008 of the Regional
Trial Court (RTC) of Tuguegarao City, Branch IV[3] in Civil Case No. 5395.

At the crux of this controversy are two parcels of land located in Barangay Libag,
Tuguegarao, Cagayan (subject properties) covered by Original Certificate of Title (OCT)
No. P-311 issued by the Registry of Deeds of Cagayan in the name of Gerardo Ugaddan
(Gerardo), husband of respondent Basilia Lacambra (Basilia) and father of the other
respondents Eugenio, Norberto, Pedro, Angelina, Tereso, Dominga, and Geronima, all
bearing the surname Ugaddan. OCT No. P-311 particularly described the subject
properties as follows:

A parcel of land, [L]ot No. 1,H-186034, containing an area of 31,682 sq.m., more or less;
bounded on the North by public land on the southeast, by lot 2 of plan H-186034 and lot
9556 of Tuguegarao Cadastre; on the south by public land and on the southwest by
Cagayan River;

A parcel of land of Lot No. 2, H-186034, containing an area of (1,723) sq.m., more or less.
Bounded on the N., by Lot 9546 of Tuguegarao Cadastre; on the E., by Lot 9556; and on
the SW., by Lot 1 of plan H-186034.[4]

Gerardo acquired title over the subject properties through the grant of Homestead Patent
No. V-6269 in his favor on January 12, 1951. Said patent was registered and OCT No. P-
311 was issued in Gerardos name on March 5, 1951.[5]

Upon Gerardos death, respondents discovered that OCT No. P-311 had been cancelled.
The records of the Registry of Deeds show that Gerardo, with the consent of his wife
Basilia, sold the subject properties on July 10, 1951 to Juan Binayug (Juan) for the sum of
P3,000.00.[6] As a result of the sale, OCT No. P-311 in Gerardos name was cancelled
and Transfer Certificate of Title (TCT) No. T-106394 in Juans name was issued. Juan was
the father of petitioner Alejandro Binayug (Alejandro) and the subject properties passed
on to him and his wife Ana Ugaddan Binayug (Ana) upon Juans death.
After conducting their own investigation, respondents filed on October 22, 1998 a
complaint for declaration of nullity of title, annulment of instrument, [and] declaration of
ownership with damages against petitioners. Respondents averred that the purported
sale between Gerardo and Juan was prohibited under Commonwealth Act No. 141,
otherwise known as the Public Land Act, as amended; and that the Absolute Deed of Sale
dated July 10, 1951 between Gerardo (with Basilias consent) and Juan was forged.
Respondents specifically alleged in their complaint[7] that:

9. The said deed of sale which led to the cancellation of OCT No. P-311 in favor of Juan
Binayug has been falsified as said Gerardo Ugaddan and herein [respondent] Basilia
Lacambra could legibly write their names but the deed of sale presented to the Registry
of Deeds of Cagayan appears to have been thumbmarked;

10. [Respondents] cannot recall any deed or instrument of sale which was executed in
favor of Juan Binayug in the year 1951, particularly that deed of sale dated July 10, 1951,
allegedly notarized by Atty. Jose P. Carag under Doc. No. 100; Page No. 20; Book No. VII;
Series of 1951 x x x;

11. The affixed [thumbmark] above the name of [respondent] Basilia Lacambra is a
forgery as shown in the Technical Investigation/ Identification Report FP Case No. 98-347
of the National Bureau of Investigation [NBI], Manila x x x;

12. OCT No. P-311 having been issued pursuant to a homestead patent cannot be
alienated, transferred or conveyed after five (5) years and before twenty-five (25) years
next following the issuance thereof in the year 1951, without the approval of the
Secretary of Agriculture and Natural Resources x x x as annotated at the back of the
same, x x x;

13. On April 8, 1997, without any legal personality or right, [petitioner] Ana Ugaddan
executed a Confirmation of Sale concerning said lots embraced under [OCT No.] P-311,
stating thereat that she is a surviving heir of the deceased Gerardo Ugaddan which is a
falsehood as she is not related in any manner to the deceased Gerardo Ugaddan, save
for the same family name, Ugaddan, x x x;

14. Earlier in November 11, 1996, [petitioner] Ana Ugaddan filed a notice of loss of OCT
No. P-311 with the Register of Deeds of Cagayan stating among others that the original
duplicate copy of OCT No. P-311 was lost while in her possession, x x x;

15. Thereafter, [petitioner] Ana Ugadan petitioned for the issuance of another owners
copy of OCT No. P-311 which ultimately led to the issuance of TCT No. T-106394 in the
name of Juan Binayug, deceased father of [petitioner] Alejandro Binayug;

16. The original owners duplicate copy of OCT No. P-311 was never lost as the same has
been and is still in the possession of [respondent] Basilia Lacambra, hence the manner
by which [petitioners] caused the transfer of title in the name of Juan Binayug was a
fraud[.][8]

Hence, respondents asserted that TCT No. T-106394 in Juans name was void for having
been obtained through fraudulent means.

Petitioners essentially denied that the Absolute Deed of Sale dated July 10, 1951 was
forged and that they fraudulently obtained TCT No. T-106394. Petitioners Answer[9]
contained the following averments:

3. x x x that, the [respondents], except Geronima Ugaddan and Basilia Lacambra, are
tenants over the parcels of land covered by TCT No. T-106394; that due to the failure of
the said [respondents] to pay the agreed lease rentals, the herein [petitioners] were
constrained to file an action against them at the [Department of Agrarian Reform
Adjudication Board] x x x;
xxxx

8. That [respondent] Ana Ugaddan reported the loss of the owners duplicate copy of
OCT No. P-311 because when [respondents] demanded from Basilia Lacambra and her
children the surrender of the said title so that [the] deed of sale in favor of Juan Binayug
could be registered, they told said [petitioner] that it was lost, and when asked to sign an
affidavit of loss, they also refused to do so;

xxxx

10. That if the owners duplicate copy of said OCT No. P-311 was not actually lost, then
said Basilia Lacambra and her children have only themselves to blame if the loss was
reported by said Ana Ugaddan because, as above stated, when the [petitioners]
demanded the surrender to them of the said title, Basilia Lacambra and her children, told
them that it was lost;

xxxx

12. That after [respondents] predecessor-in-interest had already long sold the subject
property to [petitioners] predecessor-in-interest, the former have no more existing legal
rights over the same which is one of the requisites before an injunction can be issued[.]
[10]

During trial on the merits, respondents submitted, among other pieces of evidence,
Technical Investigation/Identification Report FP Case No. 98-347 dated September 28,
1998 of the National Bureau of Investigation (NBI) to prove their allegation of fraud.
According to the NBI, the thumbmark found in the original and duplicate original
Absolute Deed of Sale dated July 10, 1951 did not match the specimen obtained from
respondent Basilia.[11]

The RTC rendered a Decision on August 6, 2007.

The RTC found that petitioners have been in possession of the subject properties for
some time now. Petitioners were able to support their testimonies with tax declarations
and official receipts, proving that they and their predecessor-in-interest have been
paying real property tax on the subject properties. In contrast, respondents failed to
produce before the court their own tax declaration for the subject properties despite
being given ample opportunity to do so; respondents merely claimed that said document
was already with their lawyer. The RTC also questioned how respondents could insist on
having possession of the subject properties but they could not even identify with
certainty the boundaries of the same. Furthermore, the RTC gave weight to the fact that
petitioners filed against respondents an agrarian case (based on allegations that
respondents are agrarian tenants who failed to pay their lease rentals) and an action for
malicious mischief (based on allegations that respondents destroyed the crops planted
on the subject properties). The RTC stated that [o]ne who firmly believes to be the
owner of a property is expected to protect it from intruders and necessarily avail of the
legal remedies to defend his rights.[12] Admittedly, respondents were acquitted of the
criminal charge for malicious mischief, but the RTC herein stressed that the acquittal was
because respondents guilt was not proven beyond reasonable doubt and not because
respondents did not at all commit the crime charged. Hence, the RTC was convinced
that the Absolute Deed of Sale dated July 10, 1951 was genuine and in existence,
actually executed by Gerardo in favor of Juan.

Despite its foregoing findings, the RTC pronounced that it did not necessarily follow that
the Absolute Deed of Sale dated July 10, 1951 was valid or legal. In fact, the RTC
expressly declared that said Deed suffered from legal infirmities.

The RTC determined that respondent Basilia did not actually give her consent to and affix
her thumbmark on said Absolute Deed of Sale, to wit:
The first witness presented by the [respondents] is Jose Palma, an employee of the
Dactyloscopic Division of the National Bureau of Investigation. He testified that in his
examinations, the [thumbmark] of Basilia Lacambra in the purported deed of sale is
different from her standard fingerprint. This finding was not refuted by the [petitioners].
Instead, they pointed their argument that the [thumbmark] of Gerardo is genuine and
likewise affixed his [thumbmark] on the questioned deed of sale and it is placed a little
bit above the name of Basilia. [Petitioners] theory in a nutshell is that, Gerardo laid his
thumbmarks on both his name and of Basilia. They however presented no evidence to
prove this contention. At best, it is merely surmises. The court sees no reason either why
Gerardo would utilize his own [thumbmark] in lieu of his wife[s]. If the [petitioners]
claim that spouses Gerardo and Basilia were alive when the supposed deed of sale was
executed, then it is presumed that both assented to the conveyance of the contested
lots absent of any indication that it was only Gerardo who participated. But having found
that the [thumbmark] of Basilia is spurious, the genuineness and authenticity of the deed
of sale become suspect.

The findings of witness-Palma is bolstered by the testimony of Guillermo Casagan when

he testified that Basilia knows how to write instead of resorting to her [thumbmarks] on
documents:

ATTY. MARTIN

xxxx

Q- Do you know whether or not Basilia Ladambra has the ability to write?

A- Yes sir. She knows how to write.

Q- Why do you know that she can write?

A- I know that she knows how to write because she had a store before and I have often
seen her write.

Q- Mr. witness, how old were you in the year 1951?

A- Thirteen years old, sir.

xxxx

In his cross-examination, his declaration on this subject was not touched by the
[petitioners] counsel. In light of this factual milieu, the court finds that the thumbprint of
Basilia Lacambra in the Absolute Deed of Sale dated July 10, 1951 is not her own. There
is no dispute that Gerardo and Basilia were married. Thus, there is hardly any reason to
reject that the homestead property is conjugal [in] nature. And since no consent was
given by Basilia in the alleged transfer, it necessarily follows that the document has no
force and effect.[13]

The RTC then declared the Absolute Deed of Sale dated July 10, 1951 as null and void for
the following reasons:

First, as proven by the testimonies of [respondents] witnesses, the marital consent was
not obtained by Gerardo.

Second, Section 118 of the Public Land Law, amended by Commonwealth Act No. 456,
reads as follows:
Section 118. Except in favor of the Government or any of its branches, units, or
institutions, lands acquired under free patent or homestead provisions shall not be
subject to encumbrance or alienation from the date of the approval of the application
and for a term of five years from and after the date of issuance of the patent or grant,
nor shall they become liable to the satisfaction of any debt contracted prior to the
expiration of said period, but the improvements or crops on the land may be mortgaged
or pledged to qualified persons, associations, or corporations.

No alienation, transfer, or conveyance of any homestead after five and before twenty-
five years after issuance of title shall be valid without the approval of the Secretary of
Agriculture and Natural Resources, which approval shall be denied except on
constitutional and legal grounds.

On the basis of the afore-quoted section, a homestead patent cannot be alienated or

encumbered within five (5) years from the approval of application except in favor of the
government or any of its branches or institutions. Where a homestead was sold during
the prohibited period, even if the sale is approved by the Director of Lands subsequently
after five (5) years, the approval will not give it any valid curative effect. Such sale is
illegal, inexistent, and null and void ab initio. The action to declare the existence of such
contract will not prescribe. As a matter of fact, the vendor never lost his title or
ownership over the homestead, and there is no need for him or his heirs to repurchase
the same from the vendee, or for the latter to execute a deed of reconveyance. Of
course, the purchaser may recover the price which he has paid, and where the
homesteader vendor died, the recovery may be pursued as a claim filed against his
estate in the corresponding proceeding.

[Petitioners] do not deny that the contested lots were originally covered by a homestead
patent. It then behooves on their part to prove that the purported deed of sale was
executed outside the five-year prohibitory period. Failure to do so, the court has no
choice but to declare null and void the deed of sale executed by spouses Gerardo and
Basilia in favor of Juan Binayug.

Evident from the records is that the issuance of the Patent was on 12 January 1951. The
registration thereof to the Register of Deeds was on 5 March 1951 and the supposed
deed of sale was executed on July 10, 1951. From the pleadings and testimonies of
[petitioners] and their witness, none can be carved out from them that the sale was
beyond the prohibitory period. In fact, they seemed to have evaded this issue. Coupled
in considering the relevant months in the year 1951, months which are too close to
shield [petitioners] from Section 118, this court can only conclude that even if it is to
presume the genuineness of the deed of sale, the conveyance is void as it falls within the
period of five (5) years. Thus, the title obtained by the vendee-Juan Binayug, is also null
and void ab initio. So also, where a homestead was sold during the prohibitory period of
five years and upon the expiration of said period a new deed of sale was executed[,]
such as a mere reproduction of the previous one, it was held that the latter deed of sale
was invalid as the prior deed which intended to ratify. For the purpose of declaring such
sale null and void, neither laches nor prescription can operate for the action is
imprescriptible.[14] (Citations omitted.)

The RTC, however, recognized petitioners good faith and did not leave them empty
handed, to wit:

This court is convinced that [petitioners] firmly believe in good faith that the land is
theirs when they took over from their parents. It however agonizes over the fact that the
law is against them as their forebears ignorance of the law has finally caught them. Of
course all [is not] lost. Even [if] we are to declare the sale as invalid, they can recover
the price on the basis of the cited jurisprudence. Considering that the sale was
consummated in 1951, it is beyond the sphere of competence of anybody to know the
price. The court will then grant a reasonable amount of P100,000 for the Thirty-Three
Thousand Four-hundred Five (33,405) square meters of land.[15]
Ultimately, the RTC decreed thus:

WHEREFORE, premises considered, Transfer Certificate of Title No. T-106394 issued in the
name of Juan Binayug is declared null and void and is hereby ordered cancelled. Original
Certificate of Title No. P-311 in the name of Gerardo Ugaddan is declared still subsisting
and valid. The Register of Deeds of the Province of Cagayan is hereby directed to cause
the necessary annotations thereof. [Respondents are] hereby ordered to pay [petitioners]
P100,000.00 as payment for the price of lots. For lack of merit, the claim for other
damages is hereby dismissed.[16]

Petitioners filed a Motion for Reconsideration of the aforementioned RTC judgment

arguing that the trial court contradicted itself in finding that the Absolute Deed of Sale
dated July 10, 1951 is genuine and in existence, then nullifying TCT No. T-106394 in
Juans name. Petitioners likewise asserted that a Torrens title such as TCT No. T-106394
is not susceptible to collateral attack.

In an Order dated January 15, 2008, the RTC denied petitioners Motion for
Reconsideration due to lack of substantial argument.

Aggrieved, petitioners immediately resorted to this Court by filing the instant Petition
under Rule 45 of the Rules of Court, which presented a lone assignment of error:

THE HONORABLE REGIONAL TRIAL COURT BRANCH IV OF TUGUEGARAO CITY GRAVELY

ERRED IN APPLYING THE PROVISION OF SECTION 118 OF THE PUBLIC LAND ACT INSTEAD
OF APPLYING THE PROVISION OF SECTION 124 OF THE SAME LAW.[17]

Before discussing the merits of the case, the Court notes that petitioners no longer
appealed the RTC judgment before the Court of Appeals, going directly before this Court
through a Petition for Review on Certiorari under Rule 45 of the Rules of Court.

According to Rule 41, Section 2(c)[18] of the Rules of Court, a decision or order of the
RTC may be appealed to the Supreme Court by petition for review on certiorari under
Rule 45, provided that such petition raises only questions of law.[19] A question of law
exists when the doubt or controversy concerns the correct application of law or
jurisprudence to a certain set of facts; or when the issue does not call for an examination
of the probative value of the evidence presented, the truth or falsehood of facts being
admitted. A question of fact exists when the doubt or difference arises as to the truth or
falsehood of facts or when the query invites calibration of the whole evidence
considering mainly the credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances, as well as their relation to each other and to the
whole, and the probability of the situation.[20]

Petitioners raise and argue only one issue in their Petition: whether or not Section 118 of
the Public Land Act is applicable to their case. They no longer challenge the appreciation
of evidence and factual conclusions of the RTC. Consequently, petitioners resort directly
to this Court via the instant Petition for Review on Certiorari is in accordance with
procedural rules.

Nonetheless, the Court finds no merit in the Petition and denies the same.

To reiterate, Section 118 of the Public Land Act, as amended, reads that [e]xcept in
favor of the Government or any of its branches, units, or institutions, or legally
constituted banking corporations, lands acquired under free patent or homestead
provisions shall not be subject to encumbrance or alienation from the date of the
approval of the application and for a term of five years from and after the date of
issuance of the patent or grant x x x. The provisions of law are clear and explicit. A
contract which purports to alienate, transfer, convey, or encumber any homestead within
the prohibitory period of five years from the date of the issuance of the patent is void
from its execution. In a number of cases, this Court has held that such provision is
mandatory.[21]

In the present case, it is settled that Homestead Patent No. V-6269 was issued to
Gerardo on January 12, 1951 and the Absolute Deed of Sale between Gerardo and Juan
was executed on July 10, 1951, after a lapse of only six months. Irrefragably, the
alienation of the subject properties took place within the five-year prohibitory period
under Section 118 of the Public Land Act, as amended; and as such, the sale by Gerardo
to Juan is null and void right from the very start.[22]

As a void contract, the Absolute Deed of Sale dated July 10, 1951 produces no legal
effect whatsoever in accordance with the principle quod nullum est nullum producit
effectum,[23] thus, it could not have transferred title to the subject properties from
Gerardo to Juan and there could be no basis for the issuance of TCT No. T-106394 in
Juans name. A void contract is also not susceptible of ratification, and the action for the
declaration of the absolute nullity of such a contract is imprescriptible.[24]

Petitioners contend that only the State can bring action for violation of Section 118 of the
Public Land Act, as amended. Moreover, Section 124 of the same Act explicitly provides
for the consequence of such a violation:

Section 124. Any acquisition, conveyance, alienation, transfer, or other contract made
or executed in violation of any of the provisions of Sections one hundred and eighteen,
one hundred and twenty, one hundred and twenty-one, one hundred and twenty-two,
and one hundred and twenty-three of this Act shall be unlawful and null and void from its
execution and shall produce the effect of annulling and cancelling the grant, title, patent
or permit originally issued, recognized or confirmed, actually or presumptively, and
cause the reversion of the property and its improvement to the State.

Petitioners contentions are not novel.

In De los Santos v. Roman Catholic Church of Midsayap,[25] a homestead patent

covering a tract of land in Midsayap, Cotabato was granted to Julio Sarabillo (Sarabillo)
on December 9, 1938. OCT No. RP-269 was issued to Sarabillo on March 17, 1939. On
December 31, 1940, Sarabillo sold two hectares of land to the Roman Catholic Church of
Midsayap (Church). Upon Sarabillos death, Catalina de los Santos (De los Santos) was
appointed administratrix of his estate. In the course of her administration, De los Santos
discovered that Sarabillos sale of land to the Church was in violation of Section 118 of
the Public Land Act, prompting her to file an action for the annulment of said sale. The
Church raised as defense Section 124 of the Public Land Act, as well as the principle of
pari delicto. The Court, in affirming the CFI judgment favoring De los Santos,
ratiocinated:

The principles thus invoked by [the Church, et al.] are correct and cannot be disputed.
They are recognized not only by our law but by our jurisprudence. Section 124 of the
Public Land Act indeed provides that any acquisition, conveyance or transfer executed in
violation of any of its provisions shall be null and void and shall produce the effect of
annulling and cancelling the grant or patent and cause the reversion of the property to
the State, and the principle of pari delicto has been applied by this Court in a number of
cases wherein the parties to a transaction have proven to be guilty of having effected
the transaction with knowledge of the cause of its invalidity. But we doubt if these
principles can now be invoked considering the philosophy and the policy behind the
approval of the Public Land Act. The principle underlying pari delicto as known here and
in the United States is not absolute in its application. It recognizes certain exceptions one
of them being when its enforcement or application runs counter to an avowed
fundamental policy or to public interest. As stated by us in the Rellosa case, This
doctrine is subject to one important limitation, namely, whenever public policy is
considered advanced by allowing either party to sue for relief against the transaction.
The case under consideration comes within the exception above adverted to. Here [De
Los Santos] desires to nullify a transaction which was done in violation of the law.
Ordinarily the principle of pari delicto would apply to her because her predecessor-in-
interest has carried out the sale with the presumed knowledge of its illegality, but
because the subject of the transaction is a piece of public land, public policy requires
that she, as heir, be not prevented from re-acquiring it because it was given by law to
her family for her home and cultivation. This is the policy on which our homestead law is
predicated. This right cannot be waived. It is not within the competence of any citizen
to barter away what public policy by law seeks to preserve. We are, therefore,
constrained to hold that [De Los Santos] can maintain the present action it being in
furtherance of this fundamental aim of our homestead law.

As regards the contention that because the immediate effect of the nullification of the
sale is the reversion of the property to the State[, De Los Santos] is not the proper party
to institute it but the State itself, that is a point which we do not have, and do not
propose, to decide. That is a matter between the State and the Grantee of the
homestead, or his heirs. What is important to consider now is who of the parties is the
better entitled to the possession of the land while the government does not take steps to
assert its title to the homestead. Upon annulment of the sale, the purchasers claim is
reduced to the purchase price and its interest. As against the vendor or his heirs, the
purchaser is no more entitled to keep the land than any intruder. Such is the situation of
the [the Church, et al.]. Their right to remain in possession of the land is no better than
that of [De Los Santos] and, therefore, they should not be allowed to remain in it to the
prejudice of [De Los Santos] during and until the government takes steps toward its
reversion to the State.[26] (Emphases supplied, citations omitted.)

In Arsenal v. Intermediate Appellate Court,[27] the Court adjudged that in cases where
the homestead has been the subject of void conveyances, the law still regards the
original owner as the rightful owner subject to escheat proceedings by the State. Still in
Arsenal, the Court referred to Menil v. Court of Appeals[28] and Manzano v. Ocampo,[29]
wherein the land was awarded back to the original owner notwithstanding the fact that
he was equally guilty with the vendee in circumventing the law.

Jurisprudence, therefore, supports the return of the subject properties to respondents as

Gerardos heirs following the declaration that the Absolute Deed of Sale dated July 10,
1951 between Gerardo and Juan is void for being in violation of Section 118 of the Public
Land Act, as amended. That the subject properties should revert to the State under
Section 124 of the Public Land Act, as amended, is a non-issue, the State not even being
a party herein.

As a final note, although not assigned as an error in their Petition, petitioners raise as an
issue and argue extensively in their Memorandum that they had acquired acquisitive
prescription over the subject properties. The issue of prescription involves questions of
fact, i.e., when and for how long petitioners have possessed the subject properties and
whether their possession is open, continuous, exclusive, notorious, and adverse. The
RTCs findings that petitioners and their predecessor-in-interest have been in possession
of the subject properties for quite some time now or through the years are clearly
insufficient. To resolve the issue of prescription, the Court must necessarily go through
the evidence presented by the parties, which it cannot do. This Court is not a trier of
facts. To reiterate, the Court only allowed petitioners to come directly before this Court
from the RTC through the instant Petition because they raise a pure question of law,
namely, the applicability of Sections 118 and 124 of the Public Land Act, as amended.
The Court cannot take cognizance of the issue of acquisitive prescription.

WHEREFORE, the Petition is hereby DENIED. The Decision dated August 6, 2007 and
Order dated January 15, 2008 of the Regional Trial Court of Tuguegarao City, Branch IV in
Civil Case No. 5395 are hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.
Bersamin, Villarama, Jr., Perez,* and Reyes, JJ., concur.

--------------------------------------------------------------------------------
* Per Special Order No. 1385 dated December 4, 2012.

[1] Rollo, pp. 17-25; penned by Presiding Judge Lyliha L. Abella-Aquino.

[2] Id. at 26.

[3] Designated as a Family Court.

[4] Rollo, p. 17.

[5] Records, pp. 9-10.

[6] Id. at 22.

[7] Id. at 1-6.

[8] Id. at 2-3.

[9] Id. at 18-21.

[10] Id. at 18-19.

[11] Id. at 8.

[12] Rollo, p. 21.

[13] Id. at 19-20.

[14] Id. at 22-24.

[15] Id. at 24-25.

[16] Id. at 25.

[17] Id. at 10.

[18] Section 2. Modes of Appeal. x x x (c) Appeal by certiorari.In all cases where only
questions of law are raised or involved, the appeal shall be to the Supreme Court by
petition for review on certiorari in accordance with Rule 45.

[19] Section 1. Filing of petition with Supreme Court. A party desiring to appeal by
certiorari from a judgment, final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for
review on certiorari. The petition may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise only questions of law, which must
be distinctly set forth. The petitioner may seek the same provisional remedies by
verified motion filed in the same action or proceeding at any time during its pendency.
[20] Bukidnon Doctors Hospital, Inc. v. Metropolitan Bank and Trust Co., 501 Phil. 516,
526 (2005).

[21] Arsenal v. Intermediate Appellate Court, 227 Phil. 36, 45-46 (1986).

[22] PVC Investment & Management Corporation v. Borcena, 507 Phil. 668, 680 (2005).
[23] Heirs of Policronio M. Ureta, Sr. v. Heirs of Liberato M. Ureta, G.R. No. 165748,
September 14, 2011, 657 SCRA 555, 580.

[24] Id.

[25] 94 Phil. 405 (1954).

[26] Id. at 410-412.

[27] Supra note 21 at 51.

[28] 173 Phil. 584 (1978).

[29] 111 Phil. 283 (1961).

SECOND DIVISION
[ G.R. No. 163125, April 18, 2012 ]
JOSE ABELGAS, JR. AND LETECIA JUSAYAN DE ABELGAS, PETITIONERS, VS. SERVILLANO
COMIA, RURAL BANK OF SOCORRO INC. AND RURAL BANK OF PINAMALAYAN, INC.
RESPONDENTS.

DECISION

SERENO, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules
of Court, seeking to review the Court of Appeals (CA) 20 March 2003 Decision and 31
March 2004 Resolution in CA-G.R. CV No. 46241. The assailed Decision nullified the Deed
of Relinquishment, Renunciation of Rights and Quitclaim executed by respondent
Servillano Comia in favor of petitioner spouses Jose Abelgas, Jr. and Letecia Jusayan de
Abelgas, as well as the encumbrances executed by the spouses in favor of respondent
banks.

The pertinent facts are as follows:

On 4 April 1971, Comia obtained a free patent over Lot No. 919-B situated in
Pinamalayan, Oriental Mindoro with an area of 6,790 square meters.[1] Pursuant to this
free patent, Lot No. 919-B was originally registered on 26 April 1976 as Original
Certificate of Title (OCT) No. P-8553.

Subsequently, on 1 May 1971, by virtue of a notarized Deed of Relinquishment,

Renunciation of Rights and Quitclaim, Comia voluntarily conveyed a 3,000-square-meter
(3,000-sqm) portion of Lot No. 919-B to the spouses Abelgas. It was stated in the said
Deed that the subject portion was the sole property of the spouses; and that it had only
been included in the title of Comia for it adjoined his land. Indeed, based on the
Subdivision Survey, the 3,000-sqm portion of Lot No. 919-B bordered Lot No. 919-E
owned by Jose Abelgas, Jr.[2]

By virtue of this subsequent voluntary dealing over the property, the Register of Deeds
cancelled OCT No. P-8553 in the name of Comia and Transfer Certificate of Title (TCT) No.
T-46030[3] was issued on 3 May 1971 in the names of CO-OWNERS, (1) SERVILLANO
COMIA, married to Estelita Amaria, and (2) SPS. JOSE ABELGAS, JR. AND LETECIA JUSAYAN
DE ABELGAS[4] as co-owners of Lot No. 919-B. There is no explanation in the records on
how TCT No. T-46030 came about to be recorded in the names of these people when the
subject portion should have been, as a consequence of the 1971 Deed of
Relinquishment, Renunciation of Rights and Quitclaim, in the name of the spouses
Abelgas only.
Thereafter, the spouses subdivided their 3,000-sqm portion into twelve (12) lots as
evidenced by TCT Nos. T-46374 to 46375.[5] Using their TCTs, they used the lots to
secure their loan obligations with Rural Bank of Pinamalayan, Inc. (RBPI), Rural Bank of
Socorro, Inc. (RBSI), and the Philippine National Bank (PNB).

Specifically, on 6 July 1971, the spouses Abelgas constituted a mortgage on TCT No.
46366 to secure a loan for ?1,000. Then, to secure another loan for ?600, the spouses
mortgaged on 23 August 1971 the lot covered by TCT No. T-46367. Petitioners defaulted
on their obligations and hence, the lots were sold at a public auction, wherein RBPI
prevailed as the winning bidder.[6] After the lapse of the redemption period, TCT Nos. T-
17448 and T-17445 were issued in the name of RBPI.[7]

As for the remaining lots, the spouses mortgaged most[8] of these to RBSI in 1971 to
1972 as security for the spouses various loans. Petitioners defaulted on their obligations,
and, thus, the mortgagee bank foreclosed the securities wherein it emerged as the
winning bidder. Thus:[9]

TCT Nos. Security Date Auction Date Loan (P)

46364 04 September 1971 19 December 1974 800
46365 15 June 1971 26 January 1976 1,000
46369 & 46370 13 November 1971 21 December 1973 1,000
46372 & 46373 19 April 1972 21 December 1973 2,000

Of these properties, lots covered by TCT Nos. 46369 and 46370 had certificates that
were cancelled and a new one, TCT No. 71198,[10] was issued in RBSIs name.

Comia contested the issuance of these titles. He claimed that he was the sole owner of
Lot No. 919-B; and that the Deed of Relinquishment, Renunciation of Rights and
Quitclaim, which resulted in the issuance of TCT Nos. T-46030, and T-4634 to 46375, is
fictitious and nonexisting.[11] Thus, Comia demanded the recovery of Lot No. 919-B
under OCT No. P-8553 and the cancellation of the subsequent titles.[12]

He pursued his action before the Regional Trial Court (RTC) by filing a Complaint for
cancellation and recovery of, and/or quieting of title to real property and damages
against the Abelgas spouses, RBPI, RBSI, and PNB.[13] For their answer, the spouses
asserted that they had been in possession of the 3,000-sqm portion of Lot No. 919-B.[14]
During trial, Jose Abelgas Jr. testified that before 1971, he had already purchased the
said portion from respondent.[15]

In turn, the mortgagee banks, RBPI and RBSI, filed cross-claims against the spouses for
them to pay their obligations in the event that the TCTs offered as security for their loans
would be declared as null and void. Respondent assailed the encumbrances in favor of
the mortgagee banks as void ab initio and obtained in bad faith as these were executed
within the period of prohibition to dispose lands subject of a free patent under Section
118 of the Public Land Act (CA 141). Claiming lack of notice of any defect in the
certificates, both banks denied Comias allegations.

Section 118 of CA 141[16] prohibits the alienation of lands subject to a free patent within
five years from the issuance of the grant. Additionally, any disposition made after the
prohibited period must be with the consent of the Secretary of Environment and Natural
Resources. Evidently, the Deed and the mortgages were executed within the prohibited
period and without the Secretarys consent.

The RTC dismissed the Complaint of Comia.[17] It found that the Deed as signed by him
voluntarily relinquished the subject parcel of land in favor of its rightful owner and
possessors the spouses Abelgas.[18] The trial court also upheld the validity of the
mortgages, since encumbrances made in favor of banks are exempted according to the
amendatory laws of the Public Land Act.[19] Moreover, based on Decolongon v. CA,[20]
the approval of the Secretary of Environment and Natural Resources is only directory.
Accordingly, the dispositive portion reads:[21]

WHEREFORE, premises considered, judgment is hereby rendered in favor of defendants

spouses JOSE ABELGAS, Jr. and LETECIA JUSAYAN DE ABELGAS; RURAL BANKS OF
SOCORRO, INC. and RURAL BANK OF PINAMALAYAN, INC., against plaintiff SERVILLANO
COMIA, as follows:

Dismissing plaintiffs Amended Complaint;

Declaring Transfer Certificate of Title No. T-46030, and Transfer Certificates of Title Nos.
T-46364 to T-46375 and subsequent certificates of title thereto in the name of
defendants Rural Bank of Socorro, Inc. or defendant Rural Bank of Pinamalayan, Inc. as
valid and existing;

Ordering the plaintiff to pay the following:

(a) Defendants spouse (sic) Jose Abelgas, Jr. and Letecia Jusayan de Abelgas the sum of
P5,000.00 as attorneys fees;
(b) Defendant Rural Bank of Socorro, Inc., the sum of P50,000.00 as damages for
besmirched reputation being a bank institution with good standing; P2,000.00 as
attorneys fee, and P1,000.00 as litigation expenses;
(c) Defendant Rural Bank of Pinamalayan, Inc., the sum of P50,000.00 as damages for
besmirched reputation being a bank institution with good standing; P2,000.00 as
attorneys fee, and P1,000.00 as litigation expenses; and

The costs.

SO ORDERED.

Comia appealed to the CA, which modified the RTCs Decision. While the appellate court
sustained the due execution of the Deed of Relinquishment, Renunciation of Rights and
Quitclaim, it construed the document as an alienation prohibited by CA 141. The CA
pronounced that in an attempt to circumvent the law, it was made to appear that the
3,000 square meters adjoining the land of Comia was owned by the spouses. However,
based on testimonial evidence, Abelgas purchased the said portion contrary to law.[22]

Likewise, the CA nullified the mortgages, as the exemption of the banks had been
removed by Commonwealth Act 456[23] amending Section 118 of Commonwealth Act
141, which took effect on 8 June 1939.[24] Nevertheless, the banks may recover the
value of the loans with interest.[25]

In view of the Deeds nullity, and in the absence of escheat proceedings, the CA restored
to Comia Lot No. 919-B. The appellate court ruled thus:[26]

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE, and another one
entered as follows:

Declaring the deed of relinquishment and renunciation of rights and quitclaim as null and
void;

Declaring the deeds of real estate mortgage executed by defendants-appellees Jose

Abelgas, Jr. and Letecia Jusayan de Abelgas in favor of Rural Bank Pinamalayan, Inc. and
Rural Bank of Socorro, Inc., as well as the foreclosure proceedings and certificates of
sale, null and void;

Ordering the Register of Deeds of the Province of Oriental Mindoro to cancel TCT nos. T-
46030, 465364 to 465375, 46821, 71171 and 71198 and to reinstate OCT No. P-8553 in
the name of plaintiff-appellant Servillano Comia;

Ordering defendants-appellees Jose Abelgas, Jr. and Letecia Jusayan de Abelgas to pay
Rural Bank of Pinamalayan, Inc., their indebtedness in the total amount of P1,600.00 plus
interest thereon at the legal rate from the date of maturity of promissory notes, attached
as Annexes 1-A, and 2-A to its cross-claim, and the amount of P3,000.00 as
attorneys fees.

Ordering defendants-appellees Jose Abelgas, Jr. and Letecia Jusayan de Abelgas to pay
Rural Bank of Socorro, Inc. their indebtedness in the total amount of P5,600.00, plus
interest thereon at the legal rate from the date of maturity of the promissory notes,
attached as Annexes 1, 2, 3 and 4 to its cross-claim, and the amount of
P3,000.00 as attorneys fees.

SO ORDERED.

Hence, the central issue in this Petition filed by the aggrieved spouses is whether the CA
gravely erred in declaring the Deed of Relinquishment, Renunciation of Rights and
Quitclaim and the mortgages in favor of mortgagee banks, as null and void for being
contrary to the provisions of CA 141 and its amendatory laws.

Section 118 of CA 141[27] requires that before the five year prohibition applies, there
should be an alienation or encumbrance of the land acquired under free patent or
homestead.

Section 118. Except in favor of the Government or any of its branches, units, or
institutions, lands acquired under free patent or homestead provisions shall not be
subject to encumbrance or alienation from the date of the approval of the application
and for a term of five years from and after the date of issuance of the patent or grant,
nor shall they become liable to the satisfaction of any debt contracted prior to the
expiration of said period, but the improvements or crops on the land may be mortgaged
or pledged to qualified persons, associations, or corporations.

No alienation, transfer, or conveyance of any homestead after five years and before
twenty-five years after issuance of title shall be valid without the approval of the
Secretary of Agriculture and Commerce, which approval shall not be denied except on
constitutional and legal grounds.

Thus, to ascertain the correctness of the CAs Decision, there is a need to verify whether
in executing the Deed of Relinquishment, Renunciation of Rights and Quitclaim, Comia
alienated the 3,000-sqm portion after the grant of the free patent. Although this is a
finding of fact generally beyond this Courts jurisdiction,[28] this Court will consider the
issue, considering the conflicting factual and legal conclusions of the lower courts.

In real property law, alienation is defined as the transfer of the property and possession
of lands, tenements, or other things from one person to another. It is the act by which
the title to real estate is voluntarily resigned by one person to another and accepted by
the latter, in the forms prescribed by law.[29] In this case, Comia did not transfer,
convey or cede the property; but rather, he relinquished, renounced and quitclaimed
the property considering that the property already belonged to the spouses. The
voluntary renunciation by Comia of that portion was not an act of alienation, but an act
of correcting the inclusion of the property in his free patent.
The evidence on record reveals that prior the grant of the free patent, the spouses
already owned the property. This fact can be inferred from the following testimony of Jose
Abelgas, Jr.:[30]

A: It was in 1971 when he (Servillano Comia) went to our house bringing with him an
Original Certificate of Title issued to him by the Bureau of Lands.

Q: What was his purpose of bringing to you Original Certificate of Title (sic) issued by the
Bureau of Lands?

A: He wants to segregate the 3,000 square meters out of 6,790 square meters from the
Original Certificate of Title which I bought from him, sir. (Emphasis supplied.)

This testimony was not contested or objected to by Comia. Neither did he put in
evidence that he sold the property during the period of the prohibition as he would have
been deemed to be in violation of the law. Rather, his argument has always been the
non-existence of the said Deed which both lower courts have already concluded
otherwise.[31]

More important, Comia failed to dispute by clear and convincing evidence[32] the
presumption that the spouses owned the property prior to the grant of his free patent.
This presumption is present in this case since the Deed of Relinquishment and
Renunciation of Right was annotated in a public document, specifically, the original
certificate of title. Documents consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the facts therein
stated. [33] Entry No. 81908 annotating OCT No. P-8553 reads as:[34]

MEMORANDUM OF INCUMBRANCES (sic)

Entry No. 81908; Doc. No. xxx [not legible] RENUNCIATION OF RIGHTS AND QUITCLAIMS
In favor of the espouses (sic): JOSE ABELGAS JR. AND LETECIA JUSAYAN DE ABELGAS, of
legal age, filipinos, (sic) and residing at Poblacion, Gloria, Oriental Mindoro, Philippines, -
covering this Original Certificate of Title No. P-8553, in conformity with the conditions
stipulated in the Deed of Renunciation of Rights and Quitclaim executed by SERVILLANO
COMIA married to ESTELITA AIMARIA, of legal age, filipino, (sic) and residing at Socorro,
Oriental Mindoro, Philippines, on file in this registry.

Date of Instrument ------------------------- May 1, 1971

Date of Inscription ------------------------- May 3, 1971 at 8:10 a.m.

(Sgd.)
REYNALDO M. MAMBIL

REGISTER OF DEEDS

The Deed of Relinquishment, Renunciation of Rights and Quitclaim, as referred in the

title, recognizes the ownership of the spouses. Comia explicitly declared in the said Deed
that the subject portion belonging to the spouses Abelgas had been included in his title
for it adjoins his land. The Deed reads thus: [35]

That I hereby relinquish, renounce, and quitclaim, and by these presents have
RELINQUISHED, RENOUNCED, and QUITCLAIMED, all my rights, interests, possession,
occupation, and participation of a portion of THREE THOUSAND (3,000) SQUARE METERS,
of the parcel of land described above, free from all liens and encumbrances, together
with all its existing improvements that may be found there unto the ESPOUSES (sic) JOSE
A. ABELGAS Jr. and LETECIA JUSAYAN DE ABELGAS, likewise of legal ages, filipinos (sic)
and a resident of Poblacion, Gloria, Province of Oriental Mindoro, Philippines, their heirs,
executors, administrators, and assigns, and agreeing further to warrant and forever
defend the title and peaceful possession of the herein espouses (sic): JOSE A. ABELGAS
JR. and LETECIA JUSAYAN DE ABELGAS, their heirs, executors, administrators, and assigns
against the just and lawful claims of any or all persons whomsoever.

That the above described property, with an area of THREE THOUSAND (3000) SQ.
METERS, is the sole property of the above described espouses (sic) and it had only been
included in my title for it adjoins my land situated in the barrio of Quinabigan,
Pinamalayan Oriental Mindoro and it was not my fault therefore so it being not mine (sic).
I have voluntarily renounced the area of three thousand (3000) square meters, in favor
of the said Jose Abelgas Jr. and LETECIA JUSAYAN DE ABELGAS. (Emphasis and
underscoring in the original).

In support of the fact that the alienation transpired prior to the grant of a free patent, it
is remarkable that Comia never contested that the spouses had been in actual
possession of the subject portion even before his patent application. The private
ownership of land as when there is a prima facie proof of ownership like a duly
registered possessory information or a clear showing of open, continuous, exclusive, and
notorious possession is not affected by the issuance of a free patent over the same
land.[36]

A prima facie proof of ownership is not necessarily defeated by a free patent, especially
if the title covers a portion not belonging to the grantee. Where an applicant has illegally
included portions of an adjoining land that does not form part of the applicants
homestead, the title issued by virtue thereof should be cancelled.[37] In Angeles v.
Samia[38], this Court explained that:

The Land Registration Act as well as the Cadastral Act protects only the holders of a title
in good faith and does not permit its provisions to be used as a shield for the commission
of fraud, or that one should enrich himself at the expense of another (Gustilo vs.
Maravilla, 48 Phil., 442; Angelo vs. Director of Lands, 49 Phil., 838). The above-stated
Acts do not give anybody, who resorts to the provisions thereof, a better title than he
really and lawfully has. If he happened to obtain it by mistake or to secure, to the
prejudice of his neighbor, more land than he really owns, with or without bad faith on his
part, the certificate of title, which may have been issued to him under the circumstances,
may and should be cancelled or corrected (Legarda and Prieto vs. Saleeby, 31 Phil., 590).
(Emphasis supplied.)

Seeing that there is no alienation to begin with, this Court finds that the prohibition is not
applicable. Thus, the Deed of Relinquishment, Renunciation of Rights and Quitclaim is
not null and void for being contrary to the Public Land Act.

In a similar case, in Heirs of Manlapat v. Court of Appeals, this Court held that where the
alienation or transfer took place before the filing of a free patent application, the
prohibition should not be applied. In that situation, neither the prohibition nor the
rationale therefor which is to keep in the family of the patentee that portion of the public
land which the government has gratuitously given him, by shielding him from the
temptation to dispose of his landholding, could be relevant.[39]

Consequently, this Court rules against the cancellation of TCT Nos. T-46030, and T-46364
to 46375. Indeed, these subsequent certificates were issued based on a duly executed
instrument sanctioned by law.

As for the encumbrances, Comia also unsuccessfully assailed the mortgages by virtue of
an alleged violation of the Public Land Act.
For the prohibition in Section 118 of CA 141 to apply, the subject property must be
acquired by virtue of either a free patent or a homestead patent. In this case, the 3,000-
sqm portion subdivided into twelve (12) lots as evidenced by TCT Nos. T-4634 to 46375
has not been shown to be under a free patent. As it appears, what was submitted to the
mortgagee banks were TCTs not derived from a free patent.

Thus, the encumbrances thereon are not null and void, as these do not fall within the
ambit of the prohibition. This being the case, it cannot be said that the banks were in bad
faith for accepting the encumbered properties that did not originate from a free patent.
In any event, at the time of the mortgage, the Rural Banks Act (Republic Act No. 720), as
amended by Republic Act No. 5939,[40] already allows banks to accept free patents as
security for loan obligations.[41]

Absent any finding of nullity, we sustain the RTCs ruling that the alienation and
encumbrances are valid. Consequently, there is no cause to cancel the subsequent TCTs
and the resulting mortgages thereon.

IN VIEW THEREOF, the Petition is GRANTED and the assailed 20 March 2003 Decision and
31 March 2004 Resolution of the Court of Appeals are REVERSED and SET ASIDE.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, and Reyes, JJ., concur.

--------------------------------------------------------------------------------
[1] Servillano Comias Memorandum dated 20 June 2005, p. 7; rollo, p. 198.

[2] Subdivision Survey dated 13 April 1966; rollo, p. 219.

[3] Exhibit C; RTC records, p. 274.

[4] Letecia Jusayan is the spouse of Jose Abelgas, Jr.

[5] CA Decision penned by Associate Justice Marina L. Buzon, with Associate Justices
Josefina Guevara-Salonga and Danilo B. Pine concurring, p. 2; rollo, p. 102.

[6] RBPIs Memorandum dated 17 April 2009, p. 7; rollo, p. 326.

[7] On 9 June 2005, RBPI manifested before this Court that the properties had already
been sold for business reasons.

[8] Lots covered by TCT Nos. 46371 and 46375 were mortgaged to PNB, but were later
on released by the bank in the name of the Abelgas spouses.

[9] RBSIs Memorandum dated 3 September 2008, pp.7-8; rollo, pp. 276-277.

[10] Id. at 9; rollo, pp. 277.

[11] Supra note 1Error! Bookmark not defined., at 8; rollo, p. 199.

[12] Comias Amended Complaint dated 12 May 1976, p. 5; RTC records, p. 33.

[13] The Complaint against PNB was dismissed in view of its release of the mortgage.

[14] Spouses Abelgas Answer to the Amended Complaint dated 15 June 1976, p. 2; RTC
records, p. 60.

[15] TSN of Civil Case No. R-444 dated 16 June 1983, pp. 5-9.
[16] An Act to Amend and Compile the Laws Relative to Lands of the Public Domain
(1936).

[17] RTC Decision penned by Judge Manuel A. Roman; rollo, p. 56.

[18] Id. at 53.

[19] Id. at 54 citing Act 3517, An act to Amend Certain Sections of Act Numbered
Twenty-Eight Hundred and Seventy-Four, known as "The Public Land Act (1929).

[20] 207 Phil. 718 (1983).

[21] Supra note 17, at 56.

[22] Supra note 5, at 17; rollo, p. 117.

[23] Commonwealth Act No. 456 - An act to Amend Sections Nineteen, Twenty, and One
Hundred and Eighteen of Commonwealth Act numbered One Hundred Forty-One,
commonly known as the Public Land Act (1939).

[24] Supra note 5, at 18; rollo, p. 118.

[25] Id. at 19; rollo, p. 119.

[26] Id. at 22; rollo, pp. 121-123.

[27] As amended by Commonwealth Act No. 456, An Act to Amend Sections Nineteen,
Twenty and One Hundred and Eighteen of Commonwealth Act Numbered One Hundred
Forty-One, commonly known as The Public Land Act (1939).

[28] Republic v. Regional Trial Court, Br. 18, Roxas, Capiz, G.R. No. 172931, 18 June 2009,
589 SCRA 552.

[29] BLACK'S LAW DICTIONARY, 2nd ed., p. 57.

[30] TSN of Civil Case No. R-444 dated 16 June 1983, pp. 4-5.

[31] Supra note 5, at 16; rollo, p. 116; Supra note 17, at 5, rollo, p. 53.

[32] Thomson Shirts Factory v. Commissioner of Internal Revenue, 160-A Phil. 140
(1975).

[33] Rule 132, Sec. 23. Public Documents as Evidence. Documents consisting of entries
in public records made in the performance of a duty by a public officer are prima facie
evidence of the facts therein stated.

[34] Supra note 12, at 37.

[35] Exhibit A; RTC records, p. 131.

[36] Heirs of Simplicio Santiago v. Heirs of Mariano E. Santiago, 452 Phil. 238 (2003).

[37] Director of Lands v. Reyes, 69 Phil. 497 (1940).

[38] 66 Phil. 444, 449 (1938).

[39] Heirs of Manlapat v. Court of Appeals, 498 Phil. 453, 478 (2005).

[40] An Act Amending Sections Three, Four, Five, Seven, Eleven, Fourteen, Sixteen and
Seventeen of Republic Act Numbered Seven Hundred Twenty, as amended, otherwise
known as the Rural Banks Act (1969): Sec. 5. xxx
Loans may be granted by rural ranks on the security of lands without Torrens title xxx or
of homesteads or free patent lands pending the issuance of titles but already approved,
the provisions of any law or regulations to the contrary notwithstanding: Provided, That
when the corresponding titles are issued the same shall be delivered to the register of
deeds of the province where such lands are situated for the annotation of the
encumbrance: Provided, further, That in the case of lands pending homestead or free
patent titles, copies of notices for the presentation of the final proof shall also be
furnished the creditor rural bank and, if the borrower applicants fail to present the final
proof within thirty days from date of notice, the creditor rural bank may do so for them at
their expense:xxx

[41] Rural Bank of Compostela v. Court of Appeals, 337 Phil. 521 (1997).

FIRST DIVISION
[ G.R. No. 153142, March 29, 2010 ]
CATALINA BALAIS-MABANAG, ASSISTED BY HER HUSBAND, ELEUTERIO MABANAG,
PETITIONER, VS. THE REGISTER OF DEEDS OF QUEZON CITY, CONCEPCION D. ALCARAZ,
AND RAMONA PATRICIA ALCARAZ, RESPONDENTS.

DECISION

BERSAMIN, J.:

The issue of citizenship of the registered owner of land cannot anymore be raised to
forestall the execution of a final and executory judgment where the objecting party had
the opportunity to raise the issue prior to the finality of the judgment. The time for
assailing the capacity of the winning party to acquire the land was during the trial, not
during the execution of a final decision.

Antecedents

As culled from the assailed decision dated December 5, 2000 of the Court of Appeals
(CA),[1] and from the Court's decision promulgated on October 7, 1996 in G.R. No.
103577,[2] the following are the antecedent facts.

On January 19, 1985, Romulo A. Coronel, Alarico A. Coronel, Annette A. Coronel,

Annabelle C. Gonzales, Floraida C. Tupper, and Cielito A. Coronel (Coronels) executed a
document entitled receipt of down payment, stipulating that they received from
respondent Ramona Patricia Alcaraz (Ramona), through Ramona's mother, respondent
Concepcion D. Alcaraz (Concepcion), the sum of P50,000.00 as downpayment on the
total purchase price of P1,240,000.00 for their "inherited house and lot, covered by TCT
No. 119627 of the Registry of Deeds of Quezon City."

The receipt of down payment contained other stipulations, as follows:

We bind ourselves to effect the transfer in our names from our deceased father,
Constancio P. Coronel, the transfer certificate of title immediately upon our receipt of the
down payment above-stated.

On our presentation of the TCT already in our name, we will immediately execute the
deed of absolute sale of said property and Miss Ramona Patricia Alcaraz shall
immediately pay the balance of the P1,190,000.00.[3]
On February 6, 1985, the property originally registered in the name of the Coronels'
father (Constancio P. Coronel) was transferred in the name of the Coronels under Transfer
Certificate of Title (TCT) No. 327043 of the Registry of Deeds of Quezon City.

On February 18, 1985, the Coronels sold the property covered by TCT No. 327043 to the
petitioner for the higher price of P1,580,000.00 after the latter delivered an initial sum of
P300,000.00. For this reason, the Coronels rescinded their contract with Ramona by
depositing her downpayment of P50,000.00 in the bank in trust for Ramona Patricia
Alcaraz.

On February 22, 1985, Concepcion, through one Gloria P. Noel as her attorney-in-fact,
filed a complaint for specific performance and damages in her own name in the Regional
Trial Court (RTC) in Quezon City against the Coronels, docketed as Civil Case No. Q-
44134.[4] Concepcion subsequently caused the annotation of a notice of lis pendens on
TCT No. 327403.

On April 2, 1985, the petitioner had a notice of adverse claim annotated on TCT No.
327403 in the Registry of Deeds of Quezon City.

On April 25, 1985, the Coronels executed a deed of absolute sale in favor of the
petitioner.

On June 5, 1985, TCT No. 351582 was issued in the name of the petitioner.

It is relevant to mention that on May 24, 1985 the petitioner moved to have her answer
in intervention admitted in Civil Case No. Q-44134.[5] Her intervention was allowed on
May 31, 1985.[6]

Earlier, on May 19, 1986, Concepcion sought leave of court to amend the complaint for
the purpose of impleading Ramona as a co-plaintiff.[7] The amended complaint naming
both Concepcion and Ramona as plaintiffs was attached to the motion.[8] On June 25,
1986, the amended complaint was admitted.[9]

On March 1, 1989, the RTC rendered its decision,[10] disposing:

WHEREFORE, judgment for specific performance is hereby rendered ordering defendant

to execute in favor of plaintiffs a deed of absolute sale covering that parcel of land
embraced in and covered by Transfer Certificate of Title No. 327403 (now TCT No.
331582) of the Registry of Deeds for Quezon City, together with all the improvements
existing thereon, free from all liens and encumbrances, and once accomplished, to
immediately deliver said document of sale to plaintiffs, and upon receipt thereof, the
plaintiffs are ordered to pay defendants the whole balance of the purchase price
amounting to P1,190,000.00 in cash. Transfer Certificate of Title No. 331582 of the
Registry of Deeds for Quezon City in the name of intervenor is hereby cancelled and
declared to be without any force and effect. Defendants and intervenor and all other
persons claiming under them are hereby ordered to vacate the subject property, and
deliver possession thereof to plaintiff. Plaintiffs' claim for damages and attorney's fees,
as well as the counterclaims of defendants and intervenors are hereby dismissed.

No pronouncement as to costs.

So Ordered.

Upon denial of the motion for reconsideration, the Coronels and the petitioner interposed
an appeal to the CA, which promulgated a judgment on December 16, 1991, fully
upholding the decision of the RTC.

Thus, the petitioner and the Coronels appealed the CA judgment to this Court (G.R. No.
103577), which affirmed the CA on October 7, 1996.
Thereafter, the decision of the RTC became final and executory.

Acting on the respondents' motion for execution, the RTC issued a writ of execution on
October 1, 1997. However, the petitioner and the Coronels filed their motion to stay
execution and supplemental motion for reconsideration, which the RTC denied on March
10, 1998.

Upon failure of the petitioner and the Coronels to comply with the writ of execution, the
RTC approved the respondents' motion for appointment of suitable person to execute
deed, etc., and ordered on April 8, 1998 the Branch Clerk of the RTC, Branch 83, Quezon
City, to execute the deed of absolute sale in favor of Ramona in lieu of the defendants
(i.e., the petitioner and the Coronels).

On May 19, 1998, the petitioner and the Coronels filed in the CA a petition for certiorari
assailing the RTC's orders of October 1, 1997 and March 10, 1998, but the CA dismissed
the petition on July 30, 1998.

On August 21, 1998, the petitioner and the Coronels presented their motion for
reconsideration in the CA.

On September 2, 1998, the RTC held in abeyance the respondents' motion reiterating
previous motion to resolve respondents' motion, whereby the respondents sought an
order to direct the petitioner to surrender her TCT No. 331582, and the Registrar of
Deeds of Quezon City to cancel the petitioner's copy of said TCT for her failure to comply
with the earlier order for her to surrender the TCT to the Registrar of Deeds pending
resolution by the CA of the petitioner's motion for reconsideration.

Ultimately, on September 30, 1998, the CA denied the petitioner's motion for
reconsideration.

The petitioner thus appealed to the Court, which denied her petition for review for being
filed out of time. The Court also denied the petitioner's motion for reconsideration on
April 21, 1999.

Thereafter, the respondents moved in the RTC for the resolution of their pending motion.
After the RTC granted the respondents' pending motion on July 29, 1999, the petitioner
filed a motion for reconsideration against such order, but the RTC denied her motion on
September 23, 1999.

Following the denial of her motion for reconsideration, the petitioner commenced a
special civil action of certiorari in the CA to assail the RTC's action (C.A.-G.R. SP No.
55576). However, the CA dismissed her petition through its decision dated December 5,
2000, Rollo, pp. 61-69, and denied her motion for reconsideration on April 16, 2002.[11]

Issues

Hence, this appeal, in which the petitioner submits that the CA erred in sustaining the
registration by the Registrar of Deeds of the deed of absolute sale despite the lack of
indication of the citizenship of the buyer of the subject property; and in sustaining the
order of the RTC directing the Branch Clerk of Court to execute the deed of absolute sale
without first requiring the defendants to execute the deed of absolute sale as required by
the decision.

Ruling

The petition lacks merit.

A
Res judicata barred petitioner's objection

In the complaint dated February 22, 1985, respondent Concepcion, as plaintiff,

categorically averred that she was a Filipino citizen.[12] The petitioner did not deny or
disprove the averment of Filipino citizenship during the trial and on appeal. The
petitioner did not also advert to the issue of citizenship after the complaint was amended
in order to implead Ramona as a co-plaintiff, despite the petitioner's opportunity to do
so.

Yet, now, when the final decision of the RTC is already being implemented, the petitioner
would thwart the execution by assailing the directive of the RTC for the Branch Clerk of
Court to execute the deed of absolute sale and by blocking the registration of the deed
of absolute sale in the Registry of Deeds of Quezon City, on the ground that Ramona was
disqualified from owning land in the Philippines.

The petitioner's move was outrightly unwarranted.

First: The petitioner did not raise any issue against Ramona's qualifications to own land
in the Philippines during the trial or, at the latest, before the finality of the RTC judgment.
The petitioner was thereby deemed to have waived the objection, pursuant to Section 1,
Rule 9 of the Rules of Court, to wit:

Section 1. Defenses and objections not pleaded. -- Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action pending between the same parties
for the same cause, or that the action is barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim. (2a)

In every action, indeed, the parties and their counsel are enjoined to present all available
defenses and objections in order that the matter in issue can finally be laid to rest in an
appropriate contest before the court. The rule is a wise and tested one, borne by
necessity. Without the rule, there will be no end to a litigation, because the dissatisfied
litigant may simply raise "new" or additional issues in order to prevent, defeat, or delay
the implementation of an already final and executory judgment. The endlessness of
litigation can give rise to added costs for the parties, and can surely contribute to the
unwarranted clogging of court dockets. The prospect of a protracted litigation between
the parties annuls the very rationale of every litigation to attain justice. Verily, there
must be an end to litigation.

Second: The petitioner cannot now insist that the RTC did not settle the question of the
respondents' qualifications to own land due to non-citizenship. It is fundamental that the
judgment or final order is, with respect to the matter directly adjudged or as to any other
matter that could have been raised in relation thereto, conclusive between the parties
and their successors in interest by title subsequent to the commencement of the action
or special proceeding, litigating for the same thing and under the same title and in the
same capacity.[13] Thus, in Gabuya v. Layug,[14] this Court had the occasion to hold
that a judgment involving the same parties, the same facts, and the same issues binds
the parties not only as to every matter offered and received to sustain or defeat their
claims or demands, but also as to any other admissible matter that might have been
offered for that purpose and all other matters that could have been adjudged in that
case.

Third: The present recourse has not been the only one taken by the petitioner and her
counsel to assail the qualification of Ramona to acquire and own the subject property. In
fact, the Court catalogued such recourses taken for the petitioner herein in A.C. No.
5469, entitled Foronda v. Guerrero,[15] an administrative case for disbarment
commenced on June 29, 2001 by Ricardo A. Foronda (an attorney-in-fact of the
respondents) against Atty. Arnold V. Guerrero, the attorney of the petitioner,[16] as
follows:

Catalina Balais-Mabanag, assisted by her husband Eleuterio Mabanag v. Hon. Estrella T.

Estrada, et al. docketed as CA-G.R. SP No. 47710:

A special civil action for certiorari, prohibition and mandamus with prayer for temporary
restraining order and/or writ of preliminary injunction filed with the CA, on the ground
that the respondent judge committed grave abuse of discretion, excess or lack of
jurisdiction "in issuing and/or refusing to stay the execution of its decision." The
respondent put forth the argument that Ramona Patricia Alcaraz, being a foreign
national, was incapacitated to purchase the subject property due to the limitations
embodied in the 1987 Constitution.

The petition was denied, with the CA ratiocinating as follows:

We are not impressed. We find the trial court's stand on the matter to be legally
unassailable. In the first place, petitioner is not the proper party to question the
qualification or eligibility of Ramona Alcaraz. It is the State, through the Office of the
Solicitor General, which has the legal personality and the authority to question the
qualification of Ramona Alcaraz to own rural or urban land. In the second place, the
decision sought to be executed has already gained finality. As held by the Supreme
Court, when a court's judgment or order becomes final and executory it is the ministerial
duty of the trial court to issue a writ of execution to enforce its judgment (Rollo, p. 65-
66).

Catalina Balais-Mabanag, et al. v. Concepcion Alvarez, et. al. docketed as G.R. No.
135820:

This petition was filed by the respondent on behalf of his clients asking the Supreme
Court to review the decision of the CA dismissing the petition for injunction in CA-G.R. SP
No. 47710. The petition was denied for having been filed out of time, and the motion for
reconsideration therefrom was denied with finality on April 21, 1999.

Spouses Eleuterio & Catalina Mabanag v. Ramona Patricia Alcaraz and the Register of
Deeds for Quezon City docketed as Civil Case No. Q-97-31268:

A complaint for "Declaration of Inability to Acquire Real Property and Damages" filed in
the RTC QC, Branch 83. In its Order dated July 9, 1999, the court dismissed the case on
the grounds of res judicata and forum shopping. The RTC observed that "for failure of the
plaintiffs in this case to get a favorable decision from the earlier case, they tried to
prevent the execution by disqualifying the herein defendant Alcaraz"

Catalina Balais-Mabanag, assisted by her husband, Eleuterio Mabanag v. Emelita L

Mariano, Concepcion D. Alcaraz and Ramona P. Alcaraz, et al. docketed as Civil Case No.
Q-01-43396:

An action for "Annulment of Title and Deed of Absolute Sale and Damages with Prayer for
Temporary Restraining Order and/or Writ of Preliminary Injunction." In its Order dated
March 20, 2001, acting on the injunctive aspect of the case, the RTC denied the
injunction prayed for "for failure of the plaintiff to make at least a prima facie showing of
a right to the issuance of the writ." The subsequent motion for reconsideration filed by
the respondent on behalf of his clients was denied on June 18, 2001. Acting on the
defendant's Special and Affirmative Defenses and Motion to Dismiss, the court issued an
order dated January 16, 2002 dismissing the complaint finding that the decision in Civil
Case No. Q-44134 had already been turned over to complainant as attorney-in-fact of
defendants Alcarazes.

Catalina Balais-Mabanag, assisted by her husband, Eleuterio Mabanag v. Emelita L

Mariano, Concepcion D. Alcaraz and Ramona P. Alcaraz, et al. docketed as CA-G.R. SP No.
65783 (Annex "12," Comment)

A special civil action for certiorari and prohibition with prayer for temporary restraining
order and/or writ of preliminary injunction filed by Atty. Guerrero on behalf of Catalina
Balais-Mabanag. The CA dismissed the petition on June 14, 2002, and pointed out the
following:

a) On December 5, 2000, the Twelfth Division of the CA had already affirmed the
decision of the RTC that the authority of the Register of Deeds was confined only to the
determination of whether all the requisites for registration are complied with. To
authorize the Register of Deeds to determine whether Ramona Alcaraz was qualified to
own real property in the Philippines was to clothe the Register of Deeds with judicial
powers that only courts could exercise.

b) The issue as to whether Ramona Alcaraz was qualified to own real property had been
passed upon by the Third Division of the CA in CA-G.R. SP No. 47710.

c) The Third Division of the Supreme Court in G.R. No. 103577 upheld the RTC and the CA
when it ruled on October 7, 1996 that the sale of the subject land between Alcaraz and
the Coronels was perfected before the sale between Mabanag and the Coronels.

Catalina Balais-Mabanag, etc. v. Emelita L. Mariano et al. docketed as CA-G.R. CV No.

75911:

Appeal filed by Atty. Guerrero on behalf of Catalina Balais-Mabanag on February 1, 2003

after Civil Case No. Q-01-43396 for Annulment of Title and Deed of Absolute Sale and
Damages was dismissed by RTC QC, Branch 80.

Catalina Balais-Mabanag, assisted by her husband, Eleuterio Mabanag v. Hon. Estrella

Estrada, The Register of Deeds of Quezon City, Concepcion D. Alcaraz and Ramona
Patricia-Alcaraz docketed as CA-G.R. SP No. 55576:

A special civil action for certiorari, questioning the order of the RTC in Civil Case No. Q-
44134, ordering Balais-Mabanag to surrender the owner's duplicate copy of TCT No.
331582 to the Alcarazes. The CA dismissed the petition on December 5, 2000 with the
final note, to wit:

The Supreme Court Third Division as well as in G.R. No. 103577, on October 7, 1996,
ruled: "Thus the sale of the subject parcel of land between petitioners and Romana P.
Alcaraz, perfected on February 6, 1985, prior to that between petitioners and Catalina B.
Mabanag on February 18, 1985, was correctly upheld by both the lower courts below.["]

Obviously, the lower court's judgment has become final and executory as per Entry of
Judgment issued by the Supreme Court. "It is axiomatic that final and executory
judgment can no longer be attacked by any of the parties or be modified, directly or
indirectly, even by the highest court of the land..."

All the aforestated recourses have had the uniform result of sustaining the right of
Ramona to acquire the property, which warranted a finding against Atty. Guerrero of
resorting to forum shopping, and leading to his suspension from the practice of law for
two years.[17] Such result fully affirms that the petitioner's objection is now barred by
res judicata.

For res judicata to bar the institution of a subsequent action, the following requisites
must concur: (a) the former judgment must be final; (b) it must have been rendered by a
court having jurisdiction of the subject matter and the parties; (c) it must be a judgment
on the merits; and (d) there must be between the first and second actions identity of
parties, identity of the subject matter, and identity of cause of action.[18]

The guiding principle of the doctrine of res judicata was formulated by Vice Chancellor
Wigram in an English case circa 1843, thus:

xxx that where a given matter becomes the subject of litigation in, and of adjudication
by, a court of competent jurisdiction, the court requires the parties to that litigation to
bring forward their whole case, and will not (except under special circumstances) permit
the same parties to open the same subject of litigation in respect of matter which might
have been brought forward as part of the subject in contest, but which was not brought
forward, only because they have, from negligence, inadvertence, or even accident,
omitted part of their case. The plea of res judicata applies, except in special cases, not
only to points which the court was actually required by the parties to form an opinion
and pronounce a judgment, but to every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonable diligence, might have brought
forward at the time.[19]

The doctrine is also known as estoppel per rem judicatam and involves both cause of
action estoppel and issue estoppel. The purpose of the doctrine is two-fold - to prevent
unnecessary proceedings involving expenses to the parties and wastage of the court's
time which could be used by others, and to avoid stale litigations as well as to enable the
defendant to know the extent of the claims being made arising out of the same single
incident.[20]

Under the doctrine of res judicata, therefore, a final judgment or decree on the merits
rendered by a court of competent jurisdiction is conclusive of the rights of the parties or
their privies in all later suits and on all points and matters determined in the previous
suit.[21] The foundation principle upon which the doctrine rests is that the parties ought
not to be permitted to litigate the same issue more than once; that when a right or fact
has been judicially tried and determined by a court of competent jurisdiction, so long as
it remains unreversed, should be conclusive upon the parties and those in privity with
them in law or estate.[22]

B
Petitioner lacked the capacity to institute suit

It should also be pointed out that the petitioner was not the proper party to challenge
Ramona's qualifications to acquire land.

Under Section 7, Batas Pambansa Blg. 185,[23] the Solicitor General or his
representative shall institute escheat proceedings against its violators. Although the law
does not categorically state that only the Government, through the Solicitor General,
may attack the title of an alien transferee of land, it is nonetheless correct to hold that
only the Government, through the Solicitor General, has the personality to file a case
challenging the capacity of a person to acquire or to own land based on non-citizenship.
This limitation is based on the fact that the violation is committed against the State, not
against any individual; and that in the event that the transferee is adjudged to be not a
Filipino citizen, the affected property reverts to the State, not to the previous owner or
any other individual.

Herein, even assuming that Ramona was legally disqualified from owning the subject
property, the decision that voids or annuls their right of ownership over the subject land
will not inure to the benefit of the petitioner. Instead, the subject property will be
escheated in favor of the State in accordance with Batas Pambansa Blg. 185.

C
Deed of absolute sale executed
by Branch Clerk of Court was valid

The petitioner contends that the RTC did not see to it that the writ of execution be first
served on her, and a demand for her compliance be first made; hence, the deed of
absolute sale executed by the Branch Clerk of Court to implement the judgment was
void.

We do not agree.

The CA found that it was the petitioner who did not comply with the notice of the sheriff
of the implementation of the judgment through the writ of execution;[24] and that her
non-compliance then justified the RTC's order to the Branch Clerk of Court to execute the
deed of absolute sale to implement the final judgment rendered in G. R. No. 103577.

The fact that the petitioner and her counsel maneuvered to thwart, or, at least, to delay
the inevitable execution of the judgment warranted the RTC's directing the Branch Clerk
of Court execute the deed of absolute sale to implement the judgment. The RTC's effort
to implement the judgment could not be stymied by the petitioner's deliberate refusal to
comply with the judgment. Such deliberate refusal called for the RTC to order the Branch
Clerk of Court to execute the deed of absolute sale in favor of Ramona, which move of
the trial court was precisely authorized by Rule 39 of the Rules of Court, to wit:

Section 10. Execution of judgments for specific act. -- (a) Conveyance, delivery of deeds,
or other specific acts; vesting title. -- If a judgment directs a party who execute a
conveyance of land or personal property, or to deliver deeds or other documents, or to
perform any other specific act in connection therewith, and the party fails to comply
within the time specified, the court may direct the act to be done at the cost of the
disobedient party by some other person appointed by the court and the act when so
done shall have like effect as if done by the party. If real or personal property is situated
within the Philippines, the court in lieu of directing a conveyance thereof may be an
order divest the title of any party and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law. (10a)

D
A Word of Caution

In A.C. No. 5469,[25] the Court observed as follows:

It has, thus, been clearly established that in filing such numerous petitions in behalf of
his client, the respondent thereby engaged in forum shopping. The essence of forum
shopping is the filing of multiple suits involving the same parties for the same cause of
action, either simultaneously or successively, for the purpose of obtaining a favorable
judgment. It exists when, as a result of an adverse opinion in one forum, a party seeks a
favorable opinion in another, or when he institutes two or more actions or proceedings
grounded on the same cause to increase the chances of obtaining a favorable decision.
An important factor in determining the existence of forum shopping is the vexation
caused to the courts and the parties-litigants by the filing of similar cases to claim
substantially the same reliefs.
Indeed, while a lawyer owes fidelity to the cause of his client, it should not be at the
expense of truth and the administration of justice. Under the Code of Professional
Responsibility, a lawyer has the duty to assist in the speedy and efficient administration
of justice, and is enjoined from unduly delaying a case by impeding execution of a
judgment or by misusing court processes. Such filing of multiple petitions constitutes
abuse of the Court's processes and improper conduct that tends to impede, obstruct and
degrade the administration of justice and will be punished as contempt of court.
Needless to add, the lawyer who files such multiple or repetitious petitions (which
obviously delays the execution of a final and executory judgment) subjects himself to
disciplinary action for incompetence (for not knowing any better) or for willful violation of
his duties as an attorney to act with all good fidelity to the courts, and to maintain only
such actions as appear to him to be just and are consistent with truth and honor.

We note that while lawyers owe their entire devotion to the interest of their clients and
zeal in the defense of their client's right, they should not forget that they are, first and
foremost, officers of the court, bound to exert every effort to assist in the speedy and
efficient administration of justice.

In filing multiple petitions before various courts concerning the same subject matter, the
respondent violated Canon 12 of the Code of Professional Responsibility, which provides
that a lawyer shall exert every effort and consider it his duty to assist in the speedy and
efficient administration of justice. He also violated Rule 12.02 and Rule 12.04 of the
Code, as well as a lawyer's mandate "to delay no man for money or malice."

The Court reminds that its foregoing observations on the deleterious effects of forum
shopping did not apply only to Atty. Guerrero, but also to the petitioner as the client
whom he represented. Thus, this decision becomes a good occasion to warn both the
petitioner and her attorney that another attempt by them to revive the issue of
Ramona's lack of qualification to own the land will be swiftly and condignly sanctioned.

WHEREFORE, the petition for review on certiorari is denied, and the decision dated
December 5, 2000 promulgated in C.A.-G.R. SP No. 55576 is affirmed.

Costs to be paid by the petitioner.

SO ORDERED.

Carpio Morales*, (Acting Chairperson), Leonardo-De Castro, Peralta**, and Abad***, JJ.,
concur.

--------------------------------------------------------------------------------
* Per Special Order No. 828 dated March 16, 2010.

** Additional Member per Special Order No. 825 dated March 3, 2010.

*** Additional Member per Special Order No. 829 dated March 16, 2010.

[1] C.A.-G.R. SP No. 55576 entitled Catalina Balais-Mabanag, assisted by her husband
Eleuterio Mabanag v. Hon. Estrella T. Estrada, as the Presiding Judge of the Regional Trial
Court of Quezon City, Branch 83, the Register of Deeds of Quezon City, Concepcion D.
Alcaraz, and Ramona Patricia Alcaraz,; penned by Justice Eloy R. Bello, Jr. (retired), and
concurred in by Justice Eugenio S. Labitoria (retired) and Justice Eleazar R. de los Santos
(deceased); rollo, pp. 61-69.

[2] Entitled Romulo A. Coronel, Alarico A. Coronel, Annette A. Coronel, Annabelle C.

Gonzales (for herself and on behalf of Floraida C. Tupper, as attorney-in-fact), Cielito A.
Coronel, Floraida A. Almonte, and Catalina Balais Mabanag v. Court of Appeals,
Concepcion D. Alacaraz, and Ramona Patricia Alcaraz, assisted by Gloria F. Noel, as
attorney-in-fact (October 7, 1996, 263 SCRA 15).
[3] Original Records, Volume I, p. 6.

[4] Id., pp. 1-7.

[5] Id., pp. 26-40.

[6] Id., p. 41.

[7] Id., pp. 95-96.

[8] Id., pp. 97-109.

[9] Id., p. 124.

[10] Id., pp. 276-286.

[11] Id., pp. 71-73; penned by Justice Bello, and concurred in by Justice Labitoria and
Justice de los Santos.

[12] Original Records, Volume I, p. 1.

[13] Section 47 (b), Rule 39 of the Rules of Court.

[14] G.R. No. 104846, November 23, 1995, 250 SCRA 218.

[15] Adm. Case No. 5469, August 10, 2004, 436 SCRA 9.

[16] Id., p. 19 (the copying is not verbatim).

[17] Id.

[18] Custodio v. Corrado, G.R. No. 146082, July 30, 2004, 435 SCRA 500.

[19] Henderson v. Henderson, 3 Hare 100, pp. 114-115.

[20] S. Sime, A Practical Approach To Civil Procedure, (1994 Ed.), Blackstone Press Ltd.,
London, p. 391.

[21] Dela Cruz v. Joaquin, G.R. No. 162788, July 28, 2005, 464 SCRA 576.

[22] Republic v. Court of Appeals, G.R. No. 101115, August 22, 2002, 387 SCRA 549.

[23] Entitled An Act to implement Section Fifteen of Article XIV of the Constitution and for
other purposes.

[24] Supra, note 1, pp. 64-65.

[25] Supra, note 14.

THIRD DIVISION
[ G.R. NO. 163604, May 06, 2005 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. THE HON. COURT OF APPEALS
(TWENTIETH DIVISION), HON. PRESIDING JUDGE FORTUNITO L. MADRONA, RTC-BR. 35
AND APOLINARIA MALINAO JOMOC, RESPONDENTS.

DECISION
CARPIO-MORALES, J

In "In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P.

Jomoc, Apolinaria Malinao Jomoc, petitioner," the Ormoc City, Regional Trial Court, Branch
35, by Order of September 29, 1999,[1] granted the petition on the basis of the
Commissioner's Report[2] and accordingly declared the absentee spouse, who had left
his petitioner-wife nine years earlier, presumptively dead.

In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par.
2 of the Family Code. Said article provides that for the purpose of contracting a valid
subsequent marriage during the subsistence of a previous marriage where the prior
spouse had been absent for four consecutive years, the spouse present must institute
summary proceedings for the declaration of presumptive death of the absentee spouse,
without prejudice to the effect of the reappearance of the absent spouse.

The Republic, through the Office of the Solicitor General, sought to appeal the trial
court's order by filing a Notice of Appeal.[3]

By Order of November 22, 1999s,[4] the trial court, noting that no record of appeal was
filed and served "as required by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of
Civil Procedure, the present case being a special proceeding," disapproved the Notice of
Appeal.

The Republic's Motion for Reconsideration of the trial court's order of disapproval having
been denied by Order of January 13, 2000,[5] it filed a Petition for Certiorari[6] before the
Court of Appeals, it contending that the declaration of presumptive death of a person
under Article 41 of the Family Code is not a special proceeding or a case of multiple or
separate appeals requiring a record on appeal.

By Decision of May 5, 2004,[7] the Court of Appeals denied the Republic's petition on
procedural and substantive grounds in this wise:

At the outset, it must be stressed that the petition is not sufficient in form. It failed to
attach to its petition a certified true copy of the assailed Order dated January 13, 2000
[denying its Motion for Reconsideration of the November 22, 1999 Order disapproving its
Notice of Appeal]. Moreover, the petition questioned the [trial court's] Order dated
August 15, 1999, which declared Clemente Jomoc presumptively dead, likewise for
having been issued with grave abuse of discretion amounting to lack of jurisdiction, yet,
not even a copy could be found in the records. On this score alone, the petition should
have been dismissed outright in accordance with Sec. 3, Rule 46 of the Rules of Court.

However, despite the procedural lapses, the Court resolves to delve deeper into the
substantive issue of the validity/nullity of the assailed order.

The principal issue in this case is whether a petition for declaration of the presumptive
death of a person is in the nature of a special proceeding. If it is, the period to appeal is
30 days and the party appealing must, in addition to a notice of appeal, file with the trial
court a record on appeal to perfect its appeal. Otherwise, if the petition is an ordinary
action, the period to appeal is 15 days from notice or decision or final order appealed
from and the appeal is perfected by filing a notice of appeal (Section 3, Rule 41, Rules of
Court).

As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is one by which a
party sues another for the enforcement or protection of a right, or the prevention of
redress of a wrong" while a special proceeding under Section 3(c) of the same rule is
defined as "a remedy by which a party seeks to establish a status, a right or a particular
fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).

Considering the aforementioned distinction, this Court finds that the instant petition is in
the nature of a special proceeding and not an ordinary action. The petition merely seeks
for a declaration by the trial court of the presumptive death of absentee spouse
Clemente Jomoc. It does not seek the enforcement or protection of a right or the
prevention or redress of a wrong. Neither does it involve a demand of right or a cause of
action that can be enforced against any person.

On the basis of the foregoing discussion, the subject Order dated January 13, 2000
denying OSG's Motion for Reconsideration of the Order dated November 22, 1999
disapproving its Notice of Appeal was correctly issued. The instant petition, being in the
nature of a special proceeding, OSG should have filed, in addition to its Notice of Appeal,
a record on appeal in accordance with Section 19 of the Interim Rules and Guidelines to
Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and
underscoring supplied)

The Republic (petitioner) insists that the declaration of presumptive death under Article
41 of the Family Code is not a special proceeding involving multiple or separate appeals
where a record on appeal shall be filed and served in like manner.

Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases
wherein multiple appeals are allowed and a record on appeal is required for an appeal to
be perfected. The petition for the declaration of presumptive death of an absent spouse
not being included in the enumeration, petitioner contends that a mere notice of appeal
suffices.

By Resolution of December 15, 2004,[8] this Court, noting that copy of the September
27, 2004 Resolution[9] requiring respondent to file her comment on the petition was
returned unserved with postmaster's notation "Party refused," Resolved to consider that
copy deemed served upon her.

The pertinent provisions on the General Provisions on Special Proceedings, Part II of the
Revised Rules of Court entitled SPECIAL PROCEEDINGS, read:

RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES

Section 1. Subject matter of special proceedings. Rules of special proceedings are

provided for in the following:

(a) Settlement of estate of deceased persons;

(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.

Sec. 2. Applicability of rules of civil actions. In the absence of special provisions, the
rules provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings. (Underscoring supplied)

The pertinent provision of the Civil Code on presumption of death provides:

Art. 390. After an absence of seven years, it being unknown whether or not the absentee
still lives, he shall be presumed dead for all purposes, except for those of succession.

x x x (Emphasis and underscoring supplied)

Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored
its grant of the petition for the declaration of presumptive death of the absent spouse,
provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouses had been absent for four consecutive years and the spouse
present had a well-founded belief that the absent spouses was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.

For the purpose pf contracting the subsequent marriage under the preceding paragraph,
the spouses present must institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis and underscoring supplied)

Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial
court in disapproving petitioner's Notice of Appeal, provides:

Sec. 2. Modes of appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered the judgment or final order appealed from
and serving a copy thereof upon the adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple or separate appeals where the
law or these Rules so require. In such cases, the record on appeal shall be filed and
served in like manner. (Emphasis and underscoring supplied)

xxx

By the trial court's citation of Article 41 of the Family Code, it is gathered that the
petition of Apolinaria Jomoc to have her absent spouse declared presumptively dead had
for its purpose her desire to contract a valid subsequent marriage. Ergo, the petition for
that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph 2 of
the Family Code.

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY
LAW, contains the following provision, inter alia:

xxx

Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Codes requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without regard to technical rules.
(Emphasis and underscoring supplied)

x x x,

there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a
summary proceeding under the Family Code, not a special proceeding under the Revised
Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a
summary ordinary proceeding, the filing of a Notice of Appeal from the trial court's order
sufficed.

That the Family Code provision on repeal, Art. 254, provides as follows:

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386,
otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18,
19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known
as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive
orders, proclamations rules and regulations, or parts thereof, inconsistent therewith are
hereby repealed, (Emphasis and underscoring supplied),

seals the case in petitioner's favor.

Finally, on the alleged procedural flaw in petitioner's petition before the appellate court.
Petitioner's failure to attach to his petition before the appellate court a copy of the trial
court's order denying its motion for reconsideration of the disapproval of its Notice of
Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a
technical sense. Given the issue raised before it by petitioner, what the appellate court
should have done was to direct petitioner to comply with the rule.

As for petitioner's failure to submit copy of the trial court's order granting the petition for
declaration of presumptive death, contrary to the appellate court's observation that
petitioner was also assailing it, petitioner's 8-page petition[10] filed in said court does
not so reflect, it merely having assailed the order disapproving the Notice of Appeal.

WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby
REVERSED and SET ASIDE. Let the case be REMANDED to it for appropriate action in light
of the foregoing discussion.

SO ORDERED.

Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

--------------------------------------------------------------------------------
[1] Annex "F" to Petition, Rollo at 47-50.

[2] Annex "E" to Petition, id. at 44-45.

[3] Annex "A" to Petition for Certiorari, CA Rollo at 11.

[4] Annex "B" to Petition, Rollo at 41.

[5] Annex "C" to Petition, id. at 42.

[6] CA Rollo at 1-8.

[7] id. at 51-54.

[8] Rollo at 100.

[9] id. at 97.

[10] Vide note 6.

EN BANC
[ G. R. No. 133250, May 06, 2003 ]
FRANCISCO I. CHAVEZ, PETITIONER, VS. PUBLIC ESTATES AUTHORITY AND AMARI
COASTAL BAY DEVELOPMENT CORPORATION, RESPONDENTS.

RESOLUTION

CARPIO, J.:

For resolution of the Court are the following motions: (1) Motion to Inhibit and for Re-
Deliberation filed by respondent Amari Coastal Bay Development Corporation ("Amari"
for brevity) on September 13, 2002; (2) Motion to Set Case for Hearing on Oral
Argument filed by Amari on August 20, 2002; (3) Motion for Reconsideration and
Supplement to Motion for Reconsideration filed by Amari on July 26, 2002 and August 20,
2002, respectively; (4) Motion for Reconsideration and Supplement to Motion for
Reconsideration filed by respondent Public Estates Authority ("PEA" for brevity) on July
26, 2002 and August 8, 2002, respectively; and (5) Motion for Reconsideration and/or
Clarification filed by the Office of the Solicitor General on July 25, 2002. Petitioner
Francisco I. Chavez filed on November 13, 2002 his Consolidated Opposition to the main
and supplemental motions for reconsideration.

To recall, the Court's decision of July 9, 2002 ("Decision" for brevity) on the instant case
states in its summary:

We can now summarize our conclusions as follows:

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered
by certificates of title in the name of PEA, are alienable lands of the public domain. PEA
may lease these lands to private corporations but may not sell or transfer ownership of
these lands to private corporations. PEA may only sell these lands to Philippine citizens,
subject to the ownership limitations in the 1987 Constitution and existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural
resources of the public domain until classified as alienable or disposable lands open to
disposition and declared no longer needed for public service. The government can make
such classification and declaration only after PEA has reclaimed these submerged areas.
Only then can these lands qualify as agricultural lands of the public domain, which are
the only natural resources the government can alienate. In their present state, the
592.15 hectares of submerged areas are inalienable and outside the commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership
of 77.34 hectares of the Freedom Islands, such transfer is void for being contrary to
Section 3, Article XII of the 1987 Constitution which prohibits private corporations from
acquiring any kind of alienable land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156
hectares of still submerged areas of Manila Bay, such transfer is void for being contrary
to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural
resources other than agricultural lands of the public domain. PEA may reclaim these
submerged areas. Thereafter, the government can classify the reclaimed lands as
alienable or disposable, and further declare them no longer needed for public service.
Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will be
void in view of Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987
Constitution. Under Article 1409 of the Civil Code, contracts whose "object or purpose is
contrary to law," or whose "object is outside the commerce of men," are "inexistent and
void from the beginning." The Court must perform its duty to defend and uphold the
Constitution, and therefore declares the Amended JVA null and void ab initio.
Amari seeks the inhibition of Justice Antonio T. Carpio, ponente of the Decision, on the
ground that Justice Carpio, before his appointment to the Court, wrote in his Manila
Times column of July 1, 1997, "I have always maintained that the law requires the public
bidding of reclamation projects." Justice Carpio, then a private law practitioner, also
stated in the same column, "The Amari-PEA reclamation contract is legally flawed
because it was not bid out by the PEA." Amari claims that because of these statements
Justice Carpio should inhibit himself "on the grounds of bias and prejudgment" and that
the instant case should be "re-deliberated" after being assigned to a new ponente.

The motion to inhibit Justice Carpio must be denied for three reasons. First, the motion
to inhibit came after Justice Carpio had already rendered his opinion on the merits of the
case. The rule is that a motion to inhibit must be denied if filed after a member of the
Court had already given an opinion on the merits of the case,[1] the rationale being that
"a litigant cannot be permitted to speculate upon the action of the Court xxx (only to)
raise an objection of this sort after a decision has been rendered." Second, as can be
readily gleaned from the summary of the Decision quoted above, the absence of public
bidding is not one of the ratio decidendi of the Decision which is anchored on violation of
specific provisions of the Constitution. The absence of public bidding was not raised as
an issue by the parties. The absence of public bidding was mentioned in the Decision
only to complete the discussion on the law affecting reclamation contracts for the
guidance of public officials. At any rate, the Office of the Solicitor General in its Motion
for Reconsideration concedes that the absence of public bidding in the disposition of the
Freedom Islands rendered the Amended JVA null and void.[2] Third, judges and justices
are not disqualified from participating in a case just because they have written legal
articles on the law involved in the case. As stated by the Court in Republic v. Cocofed,[3]

The mere fact that, as a former columnist, Justice Carpio has written on the coconut levy
will not disqualify him, in the same manner that jurists will not be disqualified just
because they may have given their opinions as textbook writers on the question involved
in a case.
Besides, the subject and title of the column in question was "The CCP reclamation
project" and the column referred to the Amari-PEA contract only in passing in one
sentence.

Amari's motion to set the case for oral argument must also be denied since the pleadings
of the parties have discussed exhaustively the issues involved in the case.

The motions for reconsideration reiterate mainly the arguments already discussed in the
Decision. We shall consider in this Resolution only the new arguments raised by
respondents.

In its Supplement to Motion for Reconsideration, Amari argues that the Decision should
be made to apply prospectively, not retroactively to cover the Amended JVA. Amari
argues that the existence of a statute or executive order prior to its being adjudged void
is an operative fact to which legal consequences are attached, citing De Agbayani v.
PNB,[4] thus:

x x x. It does not admit of doubt that prior to the declaration of nullity such challenged
legislative or executive act must have been in force and had to be complied with. This is
so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled
to obedience and respect. Parties may have acted under it and may have changed their
positions. What could be more fitting than that in a subsequent litigation regard be had
to what has been done while such legislative or executive act was in operation and
presumed to be valid in all respects. It is now accepted as a doctrine that prior to its
being nullified, its existence as a fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the governmental organ which has the
final say on whether or not a legislative or executive measure is valid, a period of time
may have elapsed before it can exercise the power of judicial review that may lead to a
declaration of nullity. It would be to deprive the law of its quality of fairness and justice
then, if there be no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: "The actual existence of a
statute, prior to such a determination [of unconstitutionality], is an operative fact and
may have consequences which cannot justly be ignored. The past cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects, with respect to particular relations,
individual and corporate, and particular conduct, private and official." This language has
been quoted with approval in a resolution in Araneta v. Hill and the decision in Manila
Motor Co., Inc. v. Flores. x x x.

xxx

x x x That before the decision they were not constitutionally infirm was admitted
expressly. There is all the more reason then to yield assent to the now prevailing
principle that the existence of a statute or executive order prior to its being adjudged
void is an operative fact to which legal consequences are attached.
Amari now claims that "assuming arguendo that Presidential Decree Nos. 1084 and
1085, and Executive Order Nos. 525 and 654 are inconsistent with the 1987 Constitution,
the limitation imposed by the Decision on these decrees and executive orders should
only be applied prospectively from the finality of the Decision."

Amari likewise asserts that a new doctrine of the Court cannot operate retroactively if it
impairs vested rights. Amari maintains that the new doctrine embodied in the Decision
cannot apply retroactively on those who relied on the old doctrine in good faith, citing
Spouses Benzonan v. Court of Appeals,[5] thus:

At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as
amended was that enunciated in Monge and Tupas cited above. The petitioners
Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to
Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our
decisions form part of the law of the land, they are also subject to Article 4 of the Civil
Code which provides that "laws shall have no retroactive effect unless the contrary is
provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the
law looks forward not backward. The rationale against retroactivity is easy to perceive.
The retroactive application of a law usually divests rights that have already become
vested or impairs the obligations of contract and hence, is unconstitutional (Francisco v.
Certeza, 3 SCRA 565 [1961]).

The same consideration underlies our rulings giving only prospective effect to decisions
enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607
[1974] "x x x when a doctrine of this Court is overruled and a different view is adopted,
the new doctrine should be applied prospectively and should not apply to parties who
had relied on the old doctrine and acted on the faith thereof.

There may be special cases where weighty considerations of equity and social justice will
warrant a retroactive application of doctrine to temper the harshness of statutory law as
it applies to poor farmers or their widows and orphans. In the present petitions, however,
we find no such equitable considerations. Not only did the private respondent apply for
free agricultural land when he did not need it and he had no intentions of applying it to
the noble purposes behind the law, he would now repurchase for only P327,995.00, the
property purchased by the petitioners in good faith for P1,650,000.00 in 1979 and which,
because of improvements and the appreciating value of land must be worth more than
that amount now.

The buyers in good faith from DBP had a right to rely on our rulings in Monge and Tupas
when they purchased the property from DBP in 1979 or thirteen (13) years ago. Under
the rulings in these two cases, the period to repurchase the disputed lot given to
respondent Pe expired on June 18, 1982. He failed to exercise his right. His lost right
cannot be revived by relying on the 1988 case of Belisario. The right of petitioners over
the subject lot had already become vested as of that time and cannot be impaired by the
retroactive application of the Belisario ruling.
Amari's reliance on De Agbayani and Spouses Benzonan is misplaced. These cases
would apply if the prevailing law or doctrine at the time of the signing of the Amended
JVA was that a private corporation could acquire alienable lands of the public domain,
and the Decision annulled the law or reversed this doctrine. Obviously, this is not the
case here.

Under the 1935 Constitution, private corporations were allowed to acquire alienable
lands of the public domain. But since the effectivity of the 1973 Constitution, private
corporations were banned from holding, except by lease, alienable lands of the public
domain. The 1987 Constitution continued this constitutional prohibition. The prevailing
law before, during and after the signing of the Amended JVA is that private corporations
cannot hold, except by lease, alienable lands of the public domain. The Decision has not
annulled or in any way changed the law on this matter. The Decision, whether made
retroactive or not, does not change the law since the Decision merely reiterates the law
that prevailed since the effectivity of the 1973 Constitution. Thus, De Agbayani, which
refers to a law that is invalidated by a decision of the Court, has no application to the
instant case.

Likewise, Spouses Benzonan is inapplicable because it refers to a doctrine of the Court

that is overruled by a subsequent decision which adopts a new doctrine. In the instant
case, there is no previous doctrine that is overruled by the Decision. Since the case of
Manila Electric Company v. Judge Castro-Bartolome,[6] decided on June 29, 1982, the
Court has applied consistently the constitutional provision that private corporations
cannot hold, except by lease, alienable lands of the public domain. The Court reiterated
this in numerous cases, and the only dispute in the application of this constitutional
provision is whether the land in question had already become private property before the
effectivity of the 1973 Constitution.[7] If the land was already private land before the
1973 Constitution because the corporation had possessed it openly, continuously,
exclusively and adversely for at least thirty years since June 12, 1945 or earlier, then the
corporation could apply for judicial confirmation of its imperfect title. But if the land
remained public land upon the effectivity of the 1973 Constitution, then the corporation
could never hold, except by lease, such public land. Indisputably, the Decision does not
overrule any previous doctrine of the Court.

The prevailing doctrine before, during and after the signing of the Amended JVA is that
private corporations cannot hold, except by lease, alienable lands of the public domain.
This is one of the two main reasons why the Decision annulled the Amended JVA. The
other main reason is that submerged areas of Manila Bay, being part of the sea, are
inalienable and beyond the commerce of man, a doctrine that has remained immutable
since the Spanish Law on Waters of 1886. Clearly, the Decision merely reiterates, and
does not overrule, any existing judicial doctrine.

Even on the characterization of foreshore lands reclaimed by the government, the

Decision does not overrule existing law or doctrine. Since the adoption of the Regalian
doctrine in this jurisdiction, the sea and its foreshore areas have always been part of the
public domain. And since the enactment of Act No. 1654 on May 18, 1907 until the
effectivity of the 1973 Constitution, statutory law never allowed foreshore lands
reclaimed by the government to be sold to private corporations. The 1973 and 1987
Constitution enshrined and expanded the ban to include any alienable land of the public
domain.

There are, of course, decisions of the Court which, while recognizing a violation of the
law or Constitution, hold that the sale or transfer of the land may no longer be
invalidated because of "weighty considerations of equity and social justice."[8] The
invalidation of the sale or transfer may also be superfluous if the purpose of the
statutory or constitutional ban has been achieved. But none of these cases apply to
Amari.
Thus, the Court has ruled consistently that where a Filipino citizen sells land to an alien
who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the
subsequent sale to a citizen.[9] Similarly, where the alien who buys the land
subsequently acquires Philippine citizenship, the sale is validated since the purpose of
the constitutional ban to limit land ownership to Filipinos has been achieved.[10] In
short, the law disregards the constitutional disqualification of the buyer to hold land if
the land is subsequently transferred to a qualified party, or the buyer himself becomes a
qualified party. In the instant case, however, Amari has not transferred the Freedom
Islands, or any portion of it, to any qualified party. In fact, Amari admits that title to the
Freedom Islands still remains with PEA.[11]

The Court has also ruled consistently that a sale or transfer of the land may no longer be
questioned under the principle of res judicata, provided the requisites for res judicata are
present.[12] Under this principle, the courts and the parties are bound by a prior final
decision, otherwise there will be no end to litigation. As the Court declared in Toledo-
Banaga v. Court of Appeals,[13] "once a judgement has become final and executory, it
can no longer be disturbed no matter how erroneous it may be." In the instant case,
there is no prior final decision adjudicating the Freedom Islands to Amari.

There are, moreover, special circumstances that disqualify Amari from invoking equity
principles. Amari cannot claim good faith because even before Amari signed the
Amended JVA on March 30, 1999, petitioner had already filed the instant case on April
27, 1998 questioning precisely the qualification of Amari to acquire the Freedom Islands.
Even before the filing of this petition, two Senate Committees[14] had already approved
on September 16, 1997 Senate Committee Report No. 560. This Report concluded, after
a well-publicized investigation into PEA's sale of the Freedom Islands to Amari, that the
Freedom Islands are inalienable lands of the public domain. Thus, Amari signed the
Amended JVA knowing and assuming all the attendant risks, including the annulment of
the Amended JVA.

Amari has also not paid to PEA the full reimbursement cost incurred by PEA in reclaiming
the Freedom Islands. Amari states that it has paid PEA only P300,000,000.00[15] out of
the P1,894,129,200.00 total reimbursement cost agreed upon in the Amended JVA.
Moreover, Amari does not claim to have even initiated the reclamation of the 592.15
hectares of submerged areas covered in the Amended JVA, or to have started to
construct any permanent infrastructure on the Freedom Islands. In short, Amari does
not claim to have introduced any physical improvement or development on the
reclamation project that is the subject of the Amended JVA. And yet Amari claims that it
had already spent a "whopping P9,876,108,638.00" as its total development cost as of
June 30, 2002.[16] Amari does not explain how it spent the rest of the P9,876,108,638.00
total project cost after paying PEA P300,000,000.00. Certainly, Amari cannot claim to be
an innocent purchaser in good faith and for value.

In its Supplement to Motion for Reconsideration, PEA claims that it is "similarly situated"
as the Bases Conversion Development Authority (BCDA) which under R.A. No. 7227 is
tasked to sell portions of the Metro Manila military camps and other military reservations.
PEA's comparison is incorrect. The Decision states as follows:

As the central implementing agency tasked to undertake reclamation projects

nationwide, with authority to sell reclaimed lands, PEA took the place of DENR as the
government agency charged with leasing or selling reclaimed lands of the public domain.
The reclaimed lands being leased or sold by PEA are not private lands, in the same
manner that DENR, when it disposes of other alienable lands, does not dispose of private
lands but alienable lands of the public domain. Only when qualified private parties
acquire these lands will the lands become private lands. In the hands of the government
agency tasked and authorized to dispose of alienable or disposable lands of the public
domain, these lands are still public, not private lands.
PEA is the central implementing agency tasked to undertake reclamation projects
nationwide. PEA took the place of Department of Environment and Natural Resources
("DENR" for brevity) as the government agency charged with leasing or selling all
reclaimed lands of the public domain. In the hands of PEA, which took over the leasing
and selling functions of DENR, reclaimed foreshore lands are public lands in the same
manner that these same lands would have been public lands in the hands of DENR.
BCDA is an entirely different government entity. BCDA is authorized by law to sell
specific government lands that have long been declared by presidential proclamations as
military reservations for use by the different services of the armed forces under the
Department of National Defense. BCDA's mandate is specific and limited in area, while
PEA's mandate is general and national. BCDA holds government lands that have been
granted to end-user government entities the military services of the armed forces. In
contrast, under Executive Order No. 525, PEA holds the reclaimed public lands, not as an
end-user entity, but as the government agency "primarily responsible fo integrating,
directing, and coordinating all reclamation projects for and on behalf of the National
Government."

In Laurel v. Garcia,[17] cited in the Decision, the Court ruled that land devoted to public
use by the Department of Foreign Affairs, when no longer needed for public use, may be
declared patrimonial property for sale to private parties provided there is a law
authorizing such act. Well-settled is the doctrine that public land granted to an end-user
government agency for a specific public use may subsequently be withdrawn by
Congress from public use and declared patrimonial property to be sold to private parties.
R.A. No. 7227 creating the BCDA is a law that declares specific military reservations no
longer needed for defense or military purposes and reclassifies such lands as patrimonial
property for sale to private parties.

Government owned lands, as long they are patrimonial property, can be sold to private
parties, whether Filipino citizens or qualified private corporations. Thus, the so-called
Friar Lands acquired by the government under Act No. 1120 are patrimonial property[18]
which even private corporations can acquire by purchase. Likewise, reclaimed alienable
lands of the public domain if sold or transferred to a public or municipal corporation for a
monetary consideration become patrimonial property in the hands of the public or
municipal corporation. Once converted to patrimonial property, the land may be sold by
the public or municipal corporation to private parties, whether Filipino citizens or
qualified private corporations.

We reiterate what we stated in the Decision is the rationale for treating PEA in the same
manner as DENR with respect to reclaimed foreshore lands, thus:

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as
private lands will sanction a gross violation of the constitutional ban on private
corporations from acquiring any kind of alienable land of the public domain. PEA will
simply turn around, as PEA has now done under the Amended JVA, and transfer several
hundreds of hectares of these reclaimed and still to be reclaimed lands to a single
private corporation in only one transaction. This scheme will effectively nullify the
constitutional ban in Section 3, Article XII of the 1987 Constitution which was intended to
diffuse equitably the ownership of alienable lands of the public domain among Filipinos,
now numbering over 80 million strong.

This scheme, if allowed, can even be applied to alienable agricultural lands of the public
domain since PEA can "acquire x x x any and all kinds of lands." This will open the
floodgates to corporations and even individuals acquiring hundreds, if not thousands, of
hectares of alienable lands of the public domain under the guise that in the hands of PEA
these lands are private lands. This will result in corporations amassing huge
landholdings never before seen in this country creating the very evil that the
constitutional ban was designed to prevent. This will completely reverse the clear
direction of constitutional development in this country. The 1935 Constitution allowed
private corporations to acquire not more than 1,024 hectares of public lands. The 1973
Constitution prohibited private corporations from acquiring any kind of public land, and
the 1987 Constitution has unequivocally reiterated this prohibition.
Finally, the Office of the Solicitor General and PEA argue that the cost of reclaiming
deeply submerged areas is "enormous" and "it would be difficult for PEA to accomplish
such project without the participation of private corporations."[19] The Decision does not
bar private corporations from participating in reclamation projects and being paid for
their services in reclaiming lands. What the Decision prohibits, following the explicit
constitutional mandate, is for private corporations to acquire reclaimed lands of the
public domain. There is no prohibition on the directors, officers and stockholders of
private corporations, if they are Filipino citizens, from acquiring at public auction
reclaimed alienable lands of the public domain. They can acquire not more than 12
hectares per individual, and the land thus acquired becomes private land.

Despite the nullity of the Amended JVA, Amari is not precluded from recovering from PEA
in the proper proceedings, on a quantum meruit basis, hatever Amari may have incurred
in implementing the Amended JVA prior to its declaration of nullity.

WHEREFORE, finding the Motions for Reconsideration to be without merit, the same are
hereby DENIED with FINALITY. The Motion to Inhibit and for Re-Deliberation and the
Motion to Set Case for Hearing on Oral Argument are likewise DENIED.

SO ORDERED.

Davide, Jr., C.J., Vitug, Panganiban, Quisumbing, Austria- Martinez, Carpio-Morales, and
Callejo, Sr., JJ., concur.

Bellosillo, J., please see separate opinion, concurring and dissenting.

Puno, J., please see separate opinion.

Ynares-Santiago, and Sandoval-Gutierrez, JJ., please see dissenting opinion.

Corona, J., I dissent.

Azcuna, J., I take no part.

--------------------------------------------------------------------------------
[1] Limpin, Jr. v. IAC, 161 SCRA 83 (1988); Araneta v. Dinglasan, 84 Phil. 368 (1949).

[2] Motion for Reconsideration of the Office of the Solicitor General, p. 3.

[3] En Banc Resolution of February 26, 2002.

[4] 38 SCRA 429 (1971).

[5] 205 SCRA 515 (1992).

[6] 114 SCRA 799 (1982).

[7] Republic v. CA and Iglesia ni Cristo, and Republic v. Cendaa and Iglesia ni Cristo, 119
SCRA 449 (1982); Republic v. Villanueva and Iglesia ni Cristo, 114 SCRA 875 (1982);
Director of Lands v. Lood, 124 SCRA 460 (1983); Republic v. Iglesia ni Cristo, 128 SCRA
44 (1984); Director of Lands v. Hermanos y Hermanas de Sta. Cruz de Mayo, Inc., 141
SCRA 21 (1986); Director of Lands v. IAC and Acme Plywood & Veneer Inc., 146 SCRA
509 (1986); Republic v. IAC and Roman Catholic Bishop of Lucena, 168 SCRA 165 (1988);
Natividad v. CA, 202 SCRA 493 (1991); Villaflor v. CA and Nasipit Lumber Co., 280 SCRA
297 (1997). In Ayog v. Cusi, Jr., 118 SCRA 492 (1982), the Court did not apply the
constitutional ban in the 1973 Constitution because the applicant corporation, Bian
Development Co., Inc., had fully complied with all its obligations and even paid the full
purchase price before the effectivity of the 1973 Constitution, although the sales patent
was issued after the 1973 Constitution took effect.

[8] Spouses Benzonan v. Court of Appeals, note 5.

[9] United Church Board for World Ministries v. Sebastian, 159 SCRA 446 (1988); Sarsosa
Vda. de Barsobia v. Cuenco, 113 SCRA 547 (1982); Godinez v. Pak Luen, 120 SCRA 223
(1983); Vasquez v. Giap and Li Seng Giap & Sons, 96 Phil. 447 (1955).

[10] Lee v. Republic, G.R. No. 128195, October 3, 2001; Yap v. Maravillas, 121 SCRA 244
(1983); De Castro v. Teng, 129 SCRA 85 (1984).

[11] Amari's Motion for Reconsideration, p. 10.

[12] Republic v. Court of Appeals, G.R. No. 101115, August 22, 2002; Firestone Ceramics
v. Court of Appeals, 313 SCRA 522 (1999); Herrera v. Canlas, 310 SCRA 318 (1999);
People's Homesite and Housing Corporation v. Mencias, 20 SCRA 1031 (1967); Galvez v.
Tuason, 10 SCRA 344 (1964).

[13] 302 SCRA 331 (1999).

[14] Committee on Government Corporations and Public Enterprises, and Committee on

Accountability of Public Officers and Investigations.

[15] Amari's Motion for Reconsideration, p. 49.

[16] Ibid., p. 50.

[17] 187 SCRA 797 (1990); See also Ignacio v. Director of Lands, 108 Phil. 335 (1960);
Cebu Oxygen & Acetylene Co., Inc. v. Bercilles, 66 SCRA 481 (1975).

[18] Central Capiz v. Ramirez, 40 Phil. 883 (1920); Jacinto v. Director of Lands, 49 Phil.
853 (1926); Pugeda v. Trias, 4 SCRA 849 (1962); De la Cruz v. De la Cruz, 130 SCRA 666
(1984).

[19] OSG's Motion for Reconsideration, pp. 22-24; PEA's Supplement to Motion for
Reconsideration, p.12.

--------------------------------------------------------------------------------

SEPARATE OPINION, CONCURRING AND DISSENTING

And in the naked light I saw

Ten thousand people, maybe more.
People talking without speaking,
People hearing without listening,
People writing songs that voices never share
And no one dared
Disturb the sound of silence.
- Paul Simon, Sound of Silence

BELLOSILLO, J.:

A STEREOTYPICAL ACTION, AN ARCHETYPAL RESPONSE, A MATTER OF DUE PROCESS a

motion for reconsideration relieves the pressure of mistakes shrouded in the mystified
body of putative precedents. It serves the traditional and standard procedure for a
second chance not only in favor of party-litigants but the courts as well, before taking
that great leap of faith into stare decisis where even our errors are etched as rules of
conduct or, as our conscious choice would have it, into the jural postulate of a civilized
society where men are able to assume that they may control, for purposes beneficial to
them, what they have created by their own labor and what they have acquired under the
existing social and economic order. With such opportunity presenting itself in the instant
case, I am up to the task of scrutinizing a monumental challenge to the course of
economic decision-making inherent not in the mandate of this Court but in those of the
accountable political branches of our government whose long-standing discretion we
have thrashed a perfunctory acquiescence amidst the disturbing sound of silence is
certainly feckless and inappropriate.

First, my concurrence. I am happy that this Court has stuck to a civil libertarian's honesty
and transparency in government service when interpreting the ambit of the people's
right to information on matters of public concern. Nothing can be more empowering on
this aspect than to compel access to all information relevant to the negotiation of
government contracts including but not limited to evaluation reports, recommendations,
legal and expert opinions, minutes of meetings, terms of reference and other documents
attached to such reports or minutes, all relating to any proposed undertaking. This to me
encourages our people to watch closely the proprietary acts of State functionaries which
more often than not, because they have been cloaked in technical jargon and
speculation due to the absence of verifiable resource materials, have been left
unaccounted for public debate and searching inquiry.

Having said what is positively remarkable about the ponencia, let me discuss the crux of
my dissent.

Firstly, as explained by the contracting parties now adversely affected by the Decision to
nullify ab initio the Amended Joint Venture Agreement (AJVA), there is no reason to go
that far to prove a point. I agree with them. According to the ponencia, the AJVA was
intended to
x x x develop the Freedom Islands. The JVA also required the reclamation of an additional
250 hectares of submerged areas surrounding these islands to complete the
configuration in the Master Development Plan of the Southern Reclamation Project-
MCCRRP x x x x The subject matter of the Amended JVA, as stated in its second Whereas
clause, consists of three properties, namely: 1. `[T]hree partially reclaimed and
substantially eroded islands along Emilio Aguinaldo Boulevard in Paranaque and Las
Pias, Metro Manila, with a combined titled area of 1,578,441 square meters;' 2.
`[A]nother area of 2,421,559 square meters contiguous to the three islands;' and 3. `[A]t
AMARI's option as approved by PEA, an additional 350 hectares more or less to regularize
the configuration of the reclaimed area.' PEA confirms that the Amended JVA involves
"the development of the Freedom Islands and further reclamation of about 250
hectares. . .,' plus an option `granted to AMARI to subsequently reclaim another 350
hectares . . .' In short, the Amended JVA covers a reclamation area of 750 hectares. Only
157.84 hectares of the 750-hectare reclamation project have been reclaimed, and the
rest of the 592.15 hectares are still submerged areas forming part of Manila Bay. Under
the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's
`actual cost' in partially reclaiming the Freedom Islands. AMARI will also complete, at its
own expense, the reclamation of the Freedom Islands. AMARI will further shoulder all the
reclamation costs of all the other areas, totaling 592.15 hectares, still to be reclaimed.
AMARI and PEA will share, in the proportion of 70 percent and 30 percent, respectively,
the total net usable area which is defined in the Amended JVA as the total reclaimed area
less 30 percent earmarked for common areas. Title to AMARI's share in the net usable
area, totaling 367.5 hectares, will be issued in the name of AMARI. Section 5.2 (c) of the
Amended JVA provides that `. . . , PEA shall have the duty to execute without delay the
necessary deed of transfer or conveyance of the title pertaining to AMARI's land share
based on the Land Allocation Plan. PEA, when requested in writing by AMARI, shall then
cause the issuance and delivery of the proper certificates of title covering AMARI's Land
Share in the name of AMARI,. . . ; provided, that if more than seventy percent (70%) of
the titled area at any given time pertains to AMARI, PEA shall deliver to AMARI only
seventy percent (70%) of the titles pertaining to AMARI, until such time when a
corresponding proportionate area of additional land pertaining to PEA has been titled.'
Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5
hectares of reclaimed land which will be titled in its name. To implement the Amended
JVA, PEA delegated to the unincorporated PEA-AMARI joint venture PEA's statutory
authority, rights and privileges to reclaim foreshore and submerged areas in Manila Bay.
Section 3.2.a of the Amended JVA states that - `PEA hereby contributes to the joint
venture its rights and privileges to perform Rawland Reclamation and Horizontal
Development as well as own the Reclamation Area, thereby granting the Joint Venture
the full and exclusive right, authority and privilege to undertake the Project in
accordance with the Master Development Plan.' The Amended JVA is the product of a
renegotiation of the original JVA dated April 25, 1995 and its supplemental agreement
dated August 9, 1995.[1]
But the AJVA, which is basically a specie of an "I do, you give" contract, is severable in
the sense that AMARI's share in the project need not be paid in parcels of the reclaimed
land but also in cash. The majority cannot set this alternative aside since lawyers for
AMARI are also interested in this substitute option if all else fail.[2] Another tame
solution, so they say, is for the Public Estates Authority to hold title to the reclaimed
lands until transferred to a qualified transferee.[3] This too is possible in the name of
equity. To be sure, the prestation in the PEA-AMARI contract is not contrary to law or
public policy since the government stands to be benefited by AMARI's part of the bargain
while the latter must in turn be compensated for its efforts; in the present context
service and compensation, "I do, you give" are certainly not illegal considerations. Since
the baseless anxiety about the AJVA lies only in the mode of recompense for AMARI, and
the AJVA offers an abundance of means to get it done, even granting that the ponencia
has correctly understood the law to prevent permanently the transfer of reclaimed lands
to AMARI, no reason could sanely justify voiding the entire contract and eternally deny a
party its due for its onerous activities. As we have held in Republic v. Court of Appeals,[4]

x x x it appearing that something compensable was accomplished by them, following the

applicable provision of law and hearkening to the dictates of equity, that no one, not
even the government shall unjustly enrich oneself/itself at the expense of another, we
believe and so hold, that Pasay City and RREC should be paid for the said actual work
done and dredge-fill poured in xxxx
Secondly, I am not comfortable with the idea of forever withholding reclaimed lands as
unmoving assets in our developmental concerns.

Government lands are classified in a number of ways. They may be lands of the public
domain, either alienable or inalienable, or lands of the private domain, which refer to
"land belonging to and owned by the state as a private individual, without being devoted
for public use, public service or the development of national wealth x x x similar to
patrimonial properties of the State."[5] Under the Civil Code, government lands can
either be properties of the public dominion, or those intended for public use, such as
roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character, or those which belong to the State, without
being for public use, intended for some public service or for the development of the
national wealth;[6] or patrimonial properties of the State, i.e., properties other than
properties of the public dominion or former properties of the public dominion that are no
longer intended for public use or for public service.[7] Clearly, the government owns real
estate which is part of the "public lands" or alienable lands of the public domain and
other real estate which is not a part thereof.

Alienable lands of the public domain, or those available for alienation or disposition, are
part of the patrimonial properties of the State.[8] They are State properties available for
private ownership except that their appropriation is qualified by Secs. 2 and 3 of Art. XII
of the Constitution and the public land laws.[9] Before lands of the public domain are
declared available for private acquisition, or while they remain intended for public use or
for public service or for the development of national wealth, they would partake of
properties of public dominion just like mines before their concessions are granted,[10] in
which case, they cannot be alienated or leased or otherwise be the object of contracts.
[11] In contrast, patrimonial properties may be bought or sold or in any manner utilized
with the same effect as properties owned by private persons.[12] Lands of the private
domain, being patrimonial properties, are valid objects of contracts generally unfettered
by the terms and conditions set forth in Secs. 2 and 3 of Art. XII of the Constitution,
which refer only to lands of the public domain, nor by statutes for the settlement,
prescription or sale of public lands.
The ponencia classified the reclaimed lands herein involved to be lands of the public
domain. Thus, as summarized in the ponencia sought to be reconsidered

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now
covered by certificates of title in the name of PEA, are alienable lands of the public
domain. PEA may lease these lands to private corporations but may not sell or transfer
ownership of these lands to private corporations. PEA may only sell these lands to
Philippine citizens, subject to the ownership limitations in the 1987 Constitution and
existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural
resources of the public domain until classified as alienable or disposable lands open to
disposition and declared no longer needed for public service. The government can make
such classification and declaration only after PEA has reclaimed these submerged areas.
Only then can these lands qualify as agricultural lands of the public domain, which are
the only natural resources the government can alienate. In their present state, the
592.15 hectares of submerged areas are inalienable and outside the commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation,

ownership of 77.34 hectares of the Freedom Islands, such transfer is void for being
contrary to Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156
hectares of still submerged areas of Manila Bay, such transfer is void for being contrary
to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural
resources other than agricultural lands of the public domain. PEA may reclaim these
submerged areas. Thereafter, the government can classify the reclaimed lands as
alienable or disposable, and further declare them no longer needed for public service.
Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will be
void in view of Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.[13]

This is where I also disagree. Reclaimed lands are lands sui generis, as the majority
would rule, and precisely because of this characterization we cannot lump them up in
one telling swoop as lands of the public domain without due regard for vested rights as
well as joint executive and legislative intent to provide otherwise. For, after all, it is the
executive and legislative powers that determine land classification.[14] To illustrate, in
Province of Zamboanga del Norte v. City of Zamboanga[15] this Court took note of the
diverging "norms" provided by laws, i.e., the Civil Code and the Law of Municipal
Corporations, in classifying municipal lands into either public or patrimonial, and held
that "applying the norm obtaining under the principles constituting the Law of Municipal
Corporations, all those x x x properties in question which are devoted to public service
are deemed public; the rest remain patrimonial. Under this norm, to be considered
public, it is enough that the property be held and devoted for governmental purposes
like local administration, public education, public health, etc." Clearly, the categorization
of government lands depends upon legislative intent which the courts must implement.

The Freedom Islands was reclaimed by the Construction and Development Corporation of
the Philippines (CDCP) pursuant to a contract with the Republic whereby the former in
exchange for its efforts would receive fifty percent (50%) of the total reclaimed land. This
arrangement is authorized under Art. 5 of the Spanish Law of Waters which provides,
"[l]ands reclaimed from the sea in consequence of works constructed by the State, or by
the provinces, pueblos or private persons, with proper permission, shall become the
property of the party constructing such works, unless otherwise provided by the terms of
the grant of authority," and by PD 3-A (1973) stating that, "[t]he provisions of any law to
the contrary notwithstanding, the reclamation of areas under water, whether foreshore
or inland, shall be limited to the National Government or any person authorized by it
under a proper contract (underscoring supplied)." Both statutes are still effective since
neither one repeals the other but only a modification is inserted in that reclamation by a
private contractor must now be governed by a "contract." As the standing laws, i.e., Art.
5 of the Spanish Law of Waters and PD 3-A, treat reclaimed lands as proper objects for
disposition whether by grant of authority or contract, such reclaimed lands as they have
been acquired by the State by means of a contract are not properties of public dominion
but patrimonial lands of the State that it can dispose, and lands of the private domain
that the State may alienate to anyone since the statutes make no restriction altogether.

The reclaimed lands pertaining to CDCP under the contract with the Republic are private
properties of CDCP. The Republic is authorized to convey them to CDCP, a corporation
duly organized and registered under the laws of the Philippines,[16] and the lands
themselves are products of CDCP's efforts, money and expertise. When CDCP acquires
property, it does so in its private capacity in the course of the exercise of its corporate
powers as a juridical entity and acting as an ordinary person capable of entering into
contracts or making transactions for the transmission of title or other real rights.[17]
Under Art. 712 of the Civil Code, ownership and other real rights over property are
acquired and transmitted by tradition in consequence of certain contracts. In fact, PD
1085 (1977)[18] acknowledges the existence of rights in favor of CDCP and conditions
the transfer of assets from CDCP to PEA upon the recognition and respect for "the rights
and interests of the Construction and Development Corporation of the Philippines
pursuant to the aforesaid contract," and furthermore, upon the transfer of "such portion
or portions of the land reclaimed or to be reclaimed as provided for in the above-
mentioned contract" to the contractor or his assignees.

The rest of the lands reclaimed by CDCP as Freedom Islands but belonging to the
Republic under the contract, i.e., the other fifty percent (50%) thereof, are lands of the
private domain. The reason is simple: this fifty percent (50%) to which the Republic is
entitled is only an extension of the other fifty percent (50%) that went to CDCP as its
private property in consideration of its reclamation. An "extension," signifies
enlargement in any direction in length, breadth, or circumstance.[19] Thus, in Manila
Lodge No. 761 v. Court of Appeals[20] we held: "[i]f the reclaimed area is an extension of
the Luneta, then it is of the same nature or character as the old Luneta. Anent this
matter, it has been said that a power to extend (or continue an act or business) cannot
authorize a transaction that is totally distinct." Moreover, as in the case of lands obtained
in escheat proceedings or succession which are properties of the private domain, the
reclaimed lands are procured through the contract between the Republic and CDCP
without which they would not have come into being.

The transfer of the Freedom Islands to the PEA under PD 1085 (both the fifty percent
(50%) owned by CDCP and the other half owned by the Republic) does not alter the
description of the reclaimed lands they remain lands of the private domain. In fact, the
conveyance bolsters such characterization: fifty percent (50%) was obtained from a
private owner, CDCP, hence subsuming it under the private domain.[21] The other fifty
percent (50%) belonging to the Republic is given to PEA in exchange for a participation in
the latter's equity. As explained in DoJ Opinion No. 026, s. 1994, which answers
negatively whether the President may transfer gratuitously the title of the Republic over
all lands within the Old Bilibid Compound (OBC) in favor of the PEA, subject to the
existing valid private rights if there be any, to form part of PEA's project-related asset
pool

First and foremost, PEA's Charter delimits the contributions of the National Government
to the PEA which are to be compensated by the equivalent number of shares of stocks of
the PEA in the name of the Republic (Secs. 7 and 15, P. D. 1084). The proposed
gratuitous transfer of valuable national government property of the PEA by a Presidential
Proclamation would go beyond the amount of the contribution/exposure of the National
Government to the capital of the PEA as prescribed by law and do away with the
consideration therefor that is the equivalent number of shares of stocks of the PEA to be
issued in the name of the National Government. Accordingly, the said proposal would run
counter to the provisions of the abovementioned Charter, or amount to an amendment
of the said law (underscoring supplied).
Consequently, under LOI 1390 (1984), to accelerate the development of the First
Neighborhood Unit Project within the Manila-Cavite Coastal Road Project, an excess of
the reclaimed land was ceded by PEA to the Marina Properties Corporation.
Administrative Order No. 348 (1997) authorized PEA to undertake "pursuant to its charter
(PD 1084 and PD 1085) ancillary reclamation works to put in place the drainage canals
and outfalls and to negotiate and enter into such agreements including land-swapping,
on a value for value basis, as may be necessary for the acquisition of rights-of-way
(ROW) for the said major roads/drainage canals in order that these are undertaken at no
cost or budgetary outlay on the part of PEA or the National Government (underscoring
supplied)."[22] Subsequently, AO No. 397 (1998) of then President Ramos settled claims
of CDCP against PEA by conveying portions of the lands previously reclaimed under
CDCP's contract with the Republic.

Evidently, by these official measures making the reclaimed lands available for the
ownership of private corporations as transferees, the portions of land reclaimed by CDCP
were not intended by the executive and legislative branches of government as proper
authorities for such purpose to be labeled alienable lands of the public domain but lands
of the private domain, hence, generally not subject to the strictures of Secs. 2 and 3 of
Art. XII of the Constitution. There is none of the intention to devote them to public use in
order that they may be considered as properties still of the public domain.[23] As it is
"only the executive and possibly the legislative department that have the authority and
the power to make the declaration that said property is no longer required for public
use,"[24] or for that matter, already belongs to the private domain, and with the
declaration having been made by enlisting the reclaimed lands as pieces of assets
available for commercial use, they continue as private lands of the State when
transferred to PEA, and from the latter as mode of compensation for AMARI in the
assailed AJVA.

The authority to dispose of government lands is a strong indicum of the patrimonial

composition of the properties.[25] Ownership is the right to enjoy and dispose of a thing
without further limitations than those established by law, and jus disponendi of one's
property is an attribute of ownership. This is clear from PD 1084 (1977), the charter of
PEA which states as among the purposes thereof to "reclaim land, including foreshore
and submerged areas, by dredging, filling or other means, or to acquire reclaimed lands,"
or to "develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell
any and all kinds of lands, buildings, estates and other forms of real property, owned,
managed, controlled and/or operated by the government." To this end, PEA was
empowered to "purchase, lease, build, alter, construct, erect, enlarge, occupy, manage,
sell, mortgage, dispose of or otherwise deal in, buildings of every kind and character
whatsoever, whether belonging to, or to be acquired by the Authority."

Significantly, to stress the legislative intent to segregate PEA's patrimonial lands or lands
of the private domain which are being used as assets in its commercial undertakings
from the realm of alienable lands of the public domain, PD 1084 purposely vested it with
the right to "hold lands of the public domain in excess of [the] area permitted to private
corporations by statute." In the same DoJ Opinion No. 026, s. 1994 mentioned above, it is
articulated although ruefully that the power of PEA to dispose of its assets constitutes
adequate legal basis under Sec. 48, Chapt. 12, Bk. I, of EO 292, the Administrative Code
of 1997,[26] as well as under our ruling in Laurel v. Garcia[27] that "[i]t is not for the
President to convey valuable real property of the government on his or her own sole will
x x x [a]ny such conveyance must be authorized and approved by a law enacted by
Congress x x x [i]t requires executive and legislative concurrence" for PEA to exercise
validly such mandate.

The proscription of Secs. 2 and 3 of Art. XII of the Constitution finds no application in the
instant case, especially as regards the 157.84 hectares of reclaimed lands comprising
the Freedom Islands. As explained above, this real estate is not of the public domain but
of the private domain. In the same way, the various public land laws in their essential
parts do not govern the alienation of the Freedom Islands. What is more, reclaimed lands
are not plain and simple patches of the earth as agricultural, timber or mineral lands are,
in the full sense of being products of nature, but are the results of the intervention of
man just like in the extraction of mineral resources, i.e., gold, oil, petroleum, etc.
Landform encompasses only six (6) major categories: high mountains, low mountains,
hills, plains with high relief features, plains of moderate relief and plains of slight relief.
[28] The terrain types identified by this system are established by a uniform set of
descriptive properties, and nowhere do we read therein reclaimed lands. The origin of
our islands as other islands in the western Pacific is believed to be "the upfoldings of
ancient continental rocks with deep troughs between representing downfolds or down-
dropped blocks x x x [h]ence, the elevations of those islands x x x which rest upon
submarine platforms has been aided by deformation of the earth's crust"[29] our
islands were not created through the process of reclamation but through natural
formation.

In fact, reclaimed lands are the result of man's interference with nature. They are not
akin to land categories as we know them but more representative of the exploitation of
natural resources coupled with the inventiveness of man. As mentioned above, the more
relevant comparisons would be the exploration and utilization of mineral resources that
are turned over to the private contractor in exchange for certain fees and royalties.[30]
To be sure, the constitutional injunction in Sec. 2 of Art XII that "[w]ith the exception of
agricultural lands, all other natural resources shall not be alienated" was never intended
to restrict our leaders in the executive branch to require in mineral agreements a
stipulation "requiring the Contractor to dispose of the minerals and by-products produced
at the highest market price and to negotiate for more advantageous terms and
conditions subject to the right to enter into long-term sales or marketing contracts or
foreign exchange and commodity hedging contracts which the Government
acknowledges to be acceptable x x x x (underscoring supplied)"[31]

Without doubt, what applies to reclamation projects is this portion of Sec. 2, Art. XII of
the Constitution

x x x [t]he exploration, development, and utilization of natural resources shall be under

the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements [are] x x x under
such terms and conditions as may be provided by law (underscoring supplied)."
The clause "under such terms and conditions as may be provided by law" refers to the
standing laws affecting reclaimed lands, such as the PEA charter. The orientation to this
portion of Sec. 2 explains why in most executive issuances and statutes relating to
reclamation of lands we would read references to joint venture or production-sharing
agreements. Hence, in EO 405 (1997) Authorizing the Philippine Ports Authority (PPA) to
Reclaim and Develop Submerged Areas Vested in the PPA For Port-Related Purposes, it
was noted in the "Whereas" Clauses that land reclamation and development projects are
capital intensive infrastructure enterprises requiring huge financial outlays through joint
venture agreements. In this light, we ought to resolve the instant reclamation project
according to the clear intendment of the executive and legislative branches of
government to handle reclaimed lands as patrimonial properties and lands of the private
domain of the State.

As regards the real character of reclaimed lands, Sec. 302 of RA 7160 (1991)[32]
provides that "[t]he contractor shall be entitled to a reasonable return of its investment
in accordance with its bid proposal as accepted by the local government unit concerned
x x x x In case of land reclamation or construction of industrial estates, the repayment
plan may consist of the grant of a portion or percentage of the reclaimed land or the
industrial estate constructed." Under Sec. 6 of RA 6957 (1990),[33] "the contractor shall
be entitled to a reasonable return of its investment and operating and maintenance costs
x x x x In the case of land reclamation or the building of industrial estates, the
repayment scheme may consist of the grant of a portion or percentage of the reclaimed
land or industrial estate built, subject to the constitutional requirements with respect to
the ownership of lands." The mention of the "constitutional requirements" in RA 6957 has
to do with the equity composition of the corporate recipient of the land, i.e.,
"corporations or associations at least sixty per centum of whose capital is owned by such
citizens" and not to the outright prohibition against corporate ownership of lands of the
public domain.[34] It is also important to note that a "contractor" is any "individual, firm,
partnership, corporation, association or other organization, or any combination of any
thereof,"[35] thus qualifying AMARI to receive a portion of the reclaimed lands.

There is nothing essentially wrong with the agreement between PEA and AMARI in that
the latter would receive a portion of the reclamation project if successful. This is a
common payment scheme for such service done. It is recognized under the Spanish Law
of Waters and authorized by the PEA charter as well as by RA 6957. The assailed AJVA is
not awarding AMARI a portion of the Manila Bay, a property of public dominion, but a
fraction of the land to be uplifted from it, a land of the private domain. While the
reclamation project concerns a future thing or one having potential existence, it is
nonetheless a legitimate object of a contract.[36]

We do not have to be confused regarding the nature of the lands yet to be reclaimed.
They are the same as the Freedom Islands. Both are meant to serve legitimate
commercial ends, hence, lands of the private domain intended by both the executive and
legislative branches of government to be used as commercial assets. This objective is
obvious from PD 1084 which empowers PEA to "enter into, make, perform and carry out
contracts of every class and description, including loan agreements, mortgages and
other types of security arrangements, necessary or incidental to the realization of its
purposes with any person, firm or corporation, private or public, and with any foreign
government or entity." Executive Order No. 525 (1979)[37] provides that "[a]ll lands
reclaimed by PEA shall belong to or be owned by the PEA which shall be responsible for
its administration, development, utilization or disposition in accordance with the
provisions of Presidential Decree No. 1084. Any and all income that the PEA may derive
from the sale, lease or use of reclaimed lands shall be used in accordance with the
provisions of Presidential Decree No. 1084." Finally, EO 654 (1981)[38] mandates that
"[i]n the disposition of its assets and properties, the Authority shall have the authority to
determine the kind and manner of payment for the transfer thereof to any third party."
Since the principal task of PEA is to reclaim lands or to approve the execution of it by
others, its power to contract must necessarily involve dealings with the reclaimed lands.

Admittedly, our public land laws classify reclaimed lands as alienable lands of the public
domain.[39] Under such taxonomy, the real estate would fall within the prohibition
against ownership by private corporations under Secs. 2 and 3, Art. XII, of the
Constitution. Under the public land laws, the mode of disposing them is mainly through
lease, or if titled in the name of a government entity, by sale but only to individual
persons. But herein lies the rub - the nomenclature attached to reclaimed lands as
belonging to the public domain is statutory in origin. This means, and ought to import,
that the category may change according to legislative intent. The power to make laws
includes the power to alter and repeal them. Nothing sacrosanct like a constitutional
injunction exists that reclaimed lands be always classified as lands of the public domain;
the class is statutory in foundation and so it may change accordingly, as it was modified
for purposes of the mandate of the Public Estates Authority.

The issuance of a "special patent" under PD 1085, i.e., "Special Land Patent/Patents shall
be issued by the Secretary of Natural Resources in favor of the Public Estate Authority
without prejudice to the subsequent transfer to the contractor or his assignees of such
portion or portions of the land reclaimed or to be reclaimed as provided for in the above-
mentioned contract x x x [o]n the basis of such patents, the Land Registration
Commission shall issue the corresponding certificates of title," does not mean that the
reclaimed lands prior to such "special patent" are classified as lands of the public
domain.

As a matter of ordinary land registration practice, a special patent is a "patent to grant,

cede, and convey full ownership of alienable and disposable lands formerly covered by a
reservation or lands of the public domain" and is issued upon the "promulgation of a
special law or act of Congress or by the Secretary of Environment and Natural Resources
as authorized by an Executive Order of the President."[40] This meaning of a "special
patent" cannot override the overwhelming executive and legislative intent manifest in
PDs 1084 and 1085 to make the reclaimed lands available for contract purposes. What is
important in the definition of "special patent" is the grant by law of a property of the
Republic for the full ownership of the grantee while the classification of the land is not at
all decisive in such description since the "special law or act of Congress" or the
"Executive Order" may classify the subject land differently, as is done in the instant case.
Thus the Department of Environment and Natural Resources (DENR), through the
Reservation and Special Land Grants Section of the Land Management Division, is tasked
to issue special patents in favor of "government agencies pursuant to special laws,
proclamations, and executive orders x x x (underscoring supplied)."[41] Verily, in the
absence of a general law on the authority of the President to transfer to a government
corporation real property belonging to the Republic,[42] PD 1085 is free to choose the
means of conveying government lands from the Republic to PEA, a government
corporation, whether by special patent or otherwise without adjusting their character as
lands of private domain.

Additionally, nothing momentous can be deduced from the participation of the Secretary
of Natural Resources in the signing of the "special patent" since he is by law, prior to the
transfer of the reclaimed lands to PEA, the land officer of the Republic for lands of the
private domain as may be gleaned from Sec. 1 of Act 3038, the general law dealing with
the disposition of lands of the private domain,[43] i.e., "[t]he Secretary of Agriculture and
Natural Resources is hereby authorized to sell or lease land of the private domain of the
Government of the Philippines Islands x x x."[44] This is because under the organization
of the DENR, the Land Management Division is charged with the "planning, formulating,
and recommending policies for the sound management and disposition of x x x friar
lands, patrimonial properties of the government, and other lands under the region's
administration as well as guidelines on land use and classification," while the Reservation
and Special Land Grants Section thereof prepares the special patents proposed to be
issued in favor of "government agencies pursuant to special laws, proclamations, and
executive orders x x x x (underscoring supplied)"[45]

The reference to a "special patent" is called for since the conveyance of the reclaimed
lands begins with the Republic not with PEA. Once the transfer of the reclaimed lands is
perfected by the issuance of special land patents signed by the Secretary of Natural
Resources in favor of PEA, the subsequent disposition thereof, e.g. the transfer from PEA
to AMARI, falls within the coverage of PEA's charter and cognate laws. The reason is that
PEA is henceforth the owner of all lands reclaimed by it or by virtue of its authority
"which shall be responsible for its administration, development, utilization or disposition
in accordance with the provisions of Presidential Decree No. 1084."[46] Significantly, for
the registration of reclaimed lands alienated by PEA pursuant to its mandate, it is only
necessary to file with the Register of Deeds the "instrument of alienation, grant, patent
or conveyance" whereupon a certificate of title shall be entered as in other cases of
registered land and an owner's duplicate issued to the grantee.

Indeed, there should be no fear calling reclaimed lands "lands of the private domain" and
making them available for disposition if this be the legislative intent. The situation is no
different from the trade of mineral products such as gold, copper, oil or petroleum.
Through joint ventures that are allowed under the Constitution, our government disposes
minerals like private properties. At the end of the pendulum, if we refer to reclaimed
lands as lands of the public domain inalienable except to individual persons, then it is
time to end all reclamation projects because these efforts entail too much expense and
no individual person would have the capital to undertake it himself. We must not
hamstring both the Executive and Congress from making full use of reclaimed lands as
an option in following economic goals by the declaration made in the ponencia.

And what about rights that have been vested in private corporations in the meantime? In
the words of Dean Roscoe Pound, "[i]n civilized society men must be able to assume that
they may control, for purposes beneficial to themselves, what they have discovered and
appropriated to their own use, what they have created by their own labor and what they
have acquired under the existing social and economic order. This is a jural postulate of
civilized society as we know it. The law of property in the widest sense, including
incorporeal property and the growing doctrines as to protection of economically
advantageous relations, gives effect to the social want or demand formulated in this
postulate."[47] It appears we have not accounted for the rights of others who are not
even involved in the instant case.

The underlying issue is about trust and confidence in our government. If we want to deal
with the perceived mistrust in the motivation of our leaders, the solution rests elsewhere.
In the same manner that we do not have to scorch the face to treat a pimple, so must we
not prevent executive and legislative intent from disposing reclaimed lands, which in the
first place had to be "constructed" so it would exist, very much unlike the permanent
patches of earth that we should rightly control.

Giving petitioner Chavez a full recognition of his right to access matters of public concern
is a correct step in the appropriate direction. The ponencia should have cut and cut clean
there as we must do now. Anything beyond that, as the ponencia has done previously, is
ivory-tower and unaccountable interventionism at its worst.

PREMISES CONSIDERED, I vote to GRANT the Motions for Reconsideration and DISMISS
the Petition for Mandamus with prayer for a writ of preliminary injunction and a
temporary restraining order EXCEPT as to the right of petitioner Francisco I. Chavez to
have access to all information relevant to the negotiation of government contracts
including but not limited to evaluation reports, recommendations, legal and expert
opinions, minutes of meetings, terms of reference and other documents attached to such
reports or minutes, all relating to any proposed legitimate undertaking, which shall at all
times be respected, without prejudice to any appropriate action the petitioner may
hereafter take in the premises.

--------------------------------------------------------------------------------
[1] Decision, pp. 3, 44-45.

[2] Rollo, p. 622.

[3] Ibid.

[4] G.R. No. 103882, 25 November 1998, 299 SCRA 199, 238.

[5] DENR AO 20-98, re: "Revised Rules and Regulations on the Conduct of Appraisal of
Public Lands and Other Patrimonial Properties of the Government."

[6] Civil Code, Art. 420.

[7] Id., Arts. 421 and 422.

[8] II Tolentino, Civil Code of the Philippines 38 (1992).

[9] Sec. 2 reads in part, "[a]ll lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements may be for a period
not exceeding twenty-five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant x x x," while Sec. 3
provides "[l]ands of the public domain are classified into agricultural, forest or timber,
mineral lands, and national parks. Agricultural lands of the public domain may be further
classified by law according to the uses to which they may be devoted. Alienable lands of
the public domain shall be limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the public domain except by lease, for
a period not exceeding twenty-five years, renewable for not more than twenty-five years,
and not to exceed one thousand hectares in area. Citizens of the Philippines may lease
not more than five hundred hectares, or acquire not more than twelve hectares thereof
by purchase, homestead, or grant."

[10] Tolentino, supra.

[11] Montano v. Insular Government, 12 Phil. 572 (1909).

[12] Manila Lodge No. 761 v. Court of Appeals, No. L-41001, 30 September 1976, 73
SCRA 162.

[13] Decision, pp. 73-74.

[14] Laurel v. Garcia, G.R. Nos. 92013 and 92047, 25 July 1990, 187 SCRA 797.

[15] No. L-24440, 28 March 1968, 22 SCRA 1334, 1342.

[16] See PD 1113 (1977) entitled "Granting the Construction and Development
Corporation of the Philippines (CDCP) a Franchise to Operate, Construct and Maintain Toll
Facilities in the North and South Luzon Toll Expressways and for Other Purposes."

[17] See Salas v. Jarencio, No. L-29788, 30 august 1972, 46 SCRA 734.

[19] PD 1085 is entitled "Conveying the Land Reclaimed in the Foreshore and Offshore of
the Manila Bay (The Manila-Cavite Coastal Road Project) as Property of the Public Estates
Authority as well as Rights and Interest with Assumption of Obligations in the
Reclamation Contract Covering Areas of the Manila Bay between the Republic of the
Philippines and the Construction and Development Corporation of the Philippines."

[19] Manila Lodge No. 761 v. Court of Appeals, supra, citing 15-A Words and Phrases, p.
614, citing Mayor, etc. of Monroe vs. Quachita Parish, 17 So. 498, 499, 47 La. Ann. 1061.

[20] See Note 12 at 181.

[21] See Pindangan Agricultural Co., Inc. v. Dans, No. L-14591, 26 September 1962, 6
SCRA 14.

[22] AO 348 is entitled "Directing the Public Estates Authority to Adopt Measures for the
immediate implementation of the Boulevard 2000 Framework Plan to Alleviate the
Problems of Traffic and Flooding in the Area during the Rainy Season."

[23] Manila Lodge No. 761 v. Court of Appeals, supra; see Montano v. Insular
Government,.

[24] Ibid.

[25] Manila Lodge No. 761 v. Court of Appeals, supra.

[26] This provision reads: "Whenever real property of the Government is authorized by
law to be conveyed, the deed of conveyance shall be executed in behalf of the
government by the following x x x x (underscoring supplied)"

[27] See Note 14 at 812.

[28] The Social Science I committee, University of the Philippines, Foundations of

Behavioral Science: A Book of Readings 11 (1987).

[29] Id. at 24.

[30] See e.g. RA 7942 (1995) entitled "An Act Instituting a New System of Mineral
Resources Exploration, Development, Utilization, and Conservation" stating "[a] mineral
agreement shall grant to the contractor the exclusive right to conduct mining operations
and to extract all mineral resources found in the contract area."

[31] DENR AO 40-96, is entitled: "Revised Implementing Rules and Regulations of

Republic Act No. 7942, otherwise known as the `Philippine Mining Act of 1995.'"

[32] The Local Government Code of 1991.

[33] This is the Build, Operate and Transfer Law.

[34] See 8 February 1990 and 26 March 1990, 12th Congress, Regular Session, S.B. No.
1285, pp. 9-12, 32-33.

[35] Republic Act 4566 (1965) entitled "An Act Creating the Philippine Licensing board for
contractors, Prescribing Its Powers, Duties and Functions, Providing Funds Therefor, and
for Other Purposes."

[36] Civil Code, Arts. 1347 and 1461.

[37] EO 525 is entitled: "Designating the Public Estates Authority as the Agency Primarily
Responsible for all Reclamation Projects."

[38] EO 654 is entitled: "Further Defining Certain Functions and Powers of the Public
Estates Authority."

[39] CA 141 (1936), Sec. 59 which states: "The lands disposable under this title shall be
classified as follows: (a) Lands reclaimed by the Government by dredging, filing, or other
means x x x;" Act No. 2874 (1919), Sec. 56 which provides: "The lands disposable under
this title shall be classified as follows: (a) Lands reclaimed by the Government by
dredging, filing, or other means x x x x"

[40] DENR Manual for Land Disposition, p. 3.

[41] Id. at 6.

[42] DoJ Opinion No. 026, s. 1994, promulgated by Sec. of Justice Franklin M. Drilon.

[43] Act 3038, Sec. 2 reads: "The sale or lease of the land referred to in the preceding
section shall, if such land is agricultural, be made in the manner and subject to the
limitations prescribed in chapter five and six, respectively, of said Public Land Act, and if
it be classified differently in conformity with the provisions of chapter nine of said Act:
Provided, however, That the land necessary for the public service shall be exempt from
the provision of this Act."

[44] See also PD 461 (1974) entitled "Reorganizing the Department of Agriculture and
Natural Resources into two Departments, Namely: Department of Agriculture and
Department of Natural Resources, Amending for this Purpose Chapter I, Part VIII of the
Integrated Reorganization Plan."

[45] DENR Manual For Land Disposition at 5-6.

[46] EO 525 (1979).

[47] An Introduction to the Philosophy of Law 192 (1922).

--------------------------------------------------------------------------------
SEPARATE OPINION

PUNO, J.:

I respectfully submit that the plea of the private respondent AMARI for a prospective
application of our Decision of July 26, 2002 deserves serious attention. From the mosaic
of facts, it appears that private respondent is a Philippine corporation whose capital
structure includes a heavy mix of public investment and foreign equity. It further appears
that respondent AMARI did not conclude its Amended Joint Venture Agreement (AJVA)
with the government, thru the public respondent Public Estates Authority (PEA) without
exercising the due diligence required by law. Private respondent AMARI claims and the
records support it, that its AJVA passed the proverbial eye of the needle before it was
approved by the Chief Executive of the country.

The submission of private respondent AMARI that it believed in good faith that its AJVA
does not suffer from any legal infirmity should not be dismissed with a cavalier attitude.
First, respondent AMARI contends that it relied on the unbroken opinions of the
Department of Justice allowing the entity that undertook the reclamation project to be
paid with part of the reclaimed lands. It calls our attention to DOJ Opinion No. 130, dated
July 15, 1939, given under the 1935 Constitution, and rendered by no less than the
eminent Chief Justice Jose Abad Santos, then the Secretary of Justice, to the effect that
"reclaimed land belong to the entity or person constructing the work for the reclamation
of the land," viz:

"Section 1, Article XII of the Constitution classifies lands of the public domain in the
Philippines into agricultural, timber and mineral. This is the basic classification adopted
since the enactment of the Act of Congress of July 1, 1902, known as the Philippine Bill.
At the time of the adoption of the Constitution of the Philippines, the term "Agricultural
public lands" had, therefore, acquired a technical meaning in our public land laws. The
Supreme Court of the Philippines in the leading case of Mapa vs. Insular Government, 10
Phil. 175, held that the phrase `agricultural public lands' means those public lands
acquired from Spain which are neither timber or mineral lands. This definition has been
followed by our Supreme Court in many subsequent cases (Montano vs. Ins. Gov't., 12
Phil. 572) by prescribing distinct rules as to their disposition. Lands added to the shore
by accretion belong to the State while lands reclaimed belong to the entity or person
constructing the work for the reclamation of the land."
The advent of the 1973 and the 1987 Constitutions does not appear to have changed the
opinion of the DOJ.[1] Secondly, respondent AMARI avers that Congress has consistently
enacted laws allowing portions of reclaimed lands to be paid to whoever undertook the
work. These laws passed under the 1935 Constitution are, among others, the following:

"(i) Rep. Act No. 161 (1947) which authorizes the City of Bacolod to undertake
reclamation and own the reclaimed lands;

(ii) Rep. Act No. 287 (1948) which authorizes the Municipality of Catbalogan, Samar to
undertake reclamation and own the reclaimed lands;

(iii) Rep. Act No. 1132 (1954) which also authorizes the City of Bacolod to lease
out or sell reclaimed lands;

(iv) Rep. Act No. 3857 (1964), as amended by Rep. Act No. 4654 (1966), which
authorizes Cebu to reclaim lands and own the reclaimed lands;

(v) Rep. Act No. 4663 (1966) which authorizes the Cagayan De Oro Port Authority to
undertake reclamation and own the reclaimed lands;

(vi) Rep. Act No. 4776 (1966) which provides for the authority of Tacloban City to
undertake reclamation and to lease, sell or barter such reclaimed land;
(vii) Rep. Act No. 4850 (1966) which authorizes the Laguna Lake Development
Authority to undertake reclamation and to own such reclaimed land;

(viii) Rep. Act No. 5412 (1968) which authorizes General Santos City to undertake
reclamation and to own such reclaimed land;

(ix) Rep. Act No. 5518 (1969) which authorizes the city of Oroquieta to undertake
reclamation and to own such reclaimed land;

(x) Rep. Act No. 5519 (1969) which authorizes the City of Mandaue to undertake
reclamation and to own such reclaimed land;

(xi) Rep. Act No. 5798 (1969) which authorizes the City of Dumaguete to
undertake reclamation and to own such reclaimed land;

(xii) Rep. Act No. 5956 (1969) [An Act Making the Municipality of Dapa, Province of
Surigao Del Norte, a Sub-Port of Entry, and Authorizing the Appropriation of the
Necessary Funds for the Operation of a Customs Service Therein] which authorizes the
City to undertake reclamation and to own such reclaimed land."
The same kind of laws was passed by Congress under the 1973 and 1987 Constitutions.
Respondent AMARI cites, among others, the following laws:

"(i) Exec. Order No. 1086 (1986) [Tondo Foreshore Area], as amended by Proclamation
No. 39 (1992), which provides that reclaimed lands shall be owned by the National
Housing Authority;

(ii) Rep. Act No. 6957 (1990) [Build-Operate-Transfer Law] which provides that in case of
reclamation, the repayment scheme may consist of a grant of a portion of the reclaimed
land;

(iii) Rep. Act No. 7160 (1992) [Bases Conversion Development Authority] which
authorizes the BCDA to reclaim lands and to own the reclaimed lands;

(iv) Rep. Act No. 7621 (1992) [Cebu Port Authority] which authorizes the Cebu
Port Authority to reclaim lands and to own the reclaimed lands."
Republic Act No. 6957, enacted in 1990, otherwise known as the Build-Operate-and-
Transfer Law (BOT Law), as amended by R.A. No. 7718, is of great significance to the
case at bar. The Senate deliberations on the law clearly show that in case of reclamation
undertakings, the repayment scheme may consist of the grant of a portion of the
reclaimed land. I quote the pertinent deliberations, viz:[2]

<"x x="">The President Pro Tempore. We are still in the period of interpellations.

Senator Gonzales. Mr. President.

The President Pro Tempore. Senator Gonzales is recognized.

Senator Gonzales. Mr. President, may I be permitted to ask a few questions from the
distinguished Sponsor.

Senator Ziga. Yes, Mr. President.

The President Pro Tempore. Please proceed.

Senator Gonzales. Mr. President, Section 6 provides for the repayment scheme. It
provides here that for the financing, construction, operation, and maintenance of any
infrastructure project undertaken pursuant to the provisions of this Act, the contractor
shall be entitled to a reasonable return of his investment, operating and maintenance
costs in accordance with the bid proposal of the contractor as accepted by the concerned
contracting infrastructure agency or local government unit and incorporated in the
contract terms and conditions. This repayment scheme is to be effected by authorizing
the contractor to charge and collect reasonable tolls, fees and rentals for the use of the
project facilities, et cetera. May I know, distinguished colleague, whether this repayment
scheme is exclusive, in the sense that the repayment here would always consist in
authorizing the contractor to charge and collect reasonable tools, fees, or rentals for the
use of the project facilities?

Senator Ziga. Exclusive to the ...?

Senator Gonzales. Exclusive in the sense that no other repayment scheme may be
pursued or adopted?

Senator Ziga. Yes, Mr. President.

Senator Gonzales. If it be so, Mr. President, I notice that, among others, the project that
can be the subject of the build-operate-and-transfer scheme are land reclamations.

Senator Ziga. That is correct, Mr. President.

Senator Gonzales. Now, in land reclamation, does the distinguished Gentleman expect
that the one or the builder or contractor who effects or undertakes the reclamation
project will be merely repaid or will be required to recoup his investments, plus profits,
and otherwise, by imposing tolls. That is not the usual arrangement as far as land
reclamation is concerned.

Senator Ziga. Yes, Mr. President. "Tolls" here are concentrated more on horizontal
constructions, such as roads and bridges.

Senator Gonzales. Yes, Mr. President, but undoubtedly, the priority projects here would
be land reclamation. In land reclamation, the usual arrangement is that there should be a
certain percentage of the reclaimed area that would be under the ownership of the
Government. On the other hand, a certain percentage of the land area reclaimed would
go to the contractor or the reclaiming entity.

Senator Ziga. Yes, Mr. President.

Senator Gonzales. If as the Gentleman now say that Section 6, which is the repayment
scheme, is exclusive, then that would not be allowable and we cannot effect land
reclamation.

Senator Ziga. Yes, Mr. President. I believe that there is a little bit of difference that
probably this concept, that the Gentleman put into light here by the reclamation project,
could be met under the build-and-transfer scheme only.

Senator Gonzales. Yes, Mr. President, the build-and-transfer scheme, but there is no
question that they are already covered, either by the build-operate-and-transfer scheme
and build-and-transfer scheme. The question is repayment. How will the contractor be
able to recoup his investments, plus reasonable returns of whatever amount that he had
invested for the purpose?

I think, the distinguished Gentleman is agreeable that the imposition of tolls, fees, and
rentals would not be appropriate.

Senator Ziga. In reclamation.

Senator Gonzales. Yes, Mr. President.

Senator Ziga. Yes, Mr. President. I believe that there is a space for improvement on these
reclamation projects.
Senator Gonzales. So, we can provide for another scheme of repayment outside of the
repayment scheme as provided for in Section 6 of the bill now.

Senator Ziga. Yes, Mr. President.

Senator Gonzales. Now, would a foreign entity, probably, wholly owned by foreigners, be
authorized to engage in land reclamation?

Senator Ziga. In the earlier interpellation, we have stated that the issue of the sharing of
60:40 is one of the acceptable points of amendment. I believe that, in this bill, we are
still covered by that ratio. As of now, this bill intends that it can only allow contractor or
developers, whether they be private corporations, but with the requirements of the
Constitution as to foreign participation.

Senator Gonzales. Yes, Mr. President. Because, in Section 2, paragraph a provides:

... any private individual, partnership, corporation or firm desiring to undertake the
construction and operation of any of the infrastructure facilities mentioned in Section 3
of this Act. The private individual contractor/developer must be a Filipino citizen. For a
corporation, partnership or firm, 75 percent of the capital must be owned by the citizens
of the Philippines in accordance with Letter of Instructions No. 630.

My problem here is in land reclamation, Mr. President. Normally, the arrangement here is
that a certain percentage goes to the Government, and a certain percentage of the
reclaimed land would go to the developer or the contractor. Now, would the distinguished
Gentleman require a 75:25 percent ratio as far as the ownership of stocks are concerned,
while the Constitution allows a 60:40 ratio as far as ownership of the land is concerned?

Senator Ziga: Mr. President, we have stated that the requirements of the Constitution
would be adhered to.

Senator Gonzales. I see. So it would be sufficient that an entity, a corporation, or a

partnership that undertakes a land reclamation project be owned on the basis of the
60:40 ratio between Filipino citizens and foreigners.

Senator Ziga. Yes, that is correct, Mr. President.

Senator Gonzales. All of these would require undoubtedly amendments in this bill. Would
the distinguished Gentleman be willing to, at least, consider these amendments at the
opportune time?

Senator Ziga. Yes, Mr. President.

Senator Gonzales. Thank you, Mr. President."

On the basis of his interpellations, Senator Gonzales then introduced the following
amendment which was accepted by Senator Ziga and approved by the Senate, viz:[3]

"GONZALES AMENDMENT

Senator Gonzales. Mr. President, between lines 8 and 9, I am proposing a new paragraph
which would read as follows:

IN CASE OF LAND RECLAMATION OR THE BUILDING OF INDUSTRIAL ESTATES, THE

REPAYMENT SCHEME MAY CONSIST OF THE GRANT OF A PORTION OR PERCENTAGE OF
THE RECLAIMED LAND OR INDUSTRIAL ESTATE BUILT SUBJECT TO CONSTITUTIONAL
REQUIREMENT WITH RESPECT TO THE OWNERSHIP OF LANDS.'
Because, Mr. President, the repayment scheme includes all of these payment of tolls,
fees, rentals, and charges. But in case of land reclamation, that is not the ordinary
arrangement. Usually, the compensation there takes the form of a portion or a
percentage of the reclaimed land. And I would apply it all, as far as the building of
industrial estates is concerned. Of course, we have to respect the constitutional provision
that only Filipino citizens or corporations-at least, 60 percent of the capital of which is
owned by citizens of the Philippines-may acquire or own lands.

The President. What is the pleasure of the Sponsor?

Senator Ziga. Accepted, Mr. President.

Mr. President. Is there any objection? Any comment? (Silence) Hearing none, the same is
approved.

Senator Gonzales. Thank you, Mr. President."

Section 6 of R.A. No. 6957 (BOT Law), as amended, thus provides:

"Section 6. Repayment Scheme. For the financing, construction, operation and

maintenance of any infrastructure project undertaken through the Build-Operate-and-
Transfer arrangement or any of its variations pursuant to the provisions of this Act, the
project proponent shall be repaid by authorizing it to charge and collect reasonable tolls,
fees, and rentals for the use of the project facility not exceeding those incorporated in
the contract and, where applicable, the proponent may likewise be repaid in the form of
a share in the revenue of the project or other non-monetary payments, such as, but not
limited to, the grant of a portion or percentage of the reclaimed land, subject to the
constitutional requirements with respect to the ownership of land..."
The Rules and Regulations implementing R.A. No. 6957 (BOT Law), as amended, likewise
provide:

"Sec. 12.13 Repayment Scheme

xxx

"Where applicable, the proponent may likewise be repaid in the form of a share in the
revenue of the project or other non-monetary payments, such as, but not limited to the
grant of commercial development rights or the grant of a portion or percentage of the
reclaimed land, subject to the constitutional requirement that only Filipino citizens or in
the case of corporations only those with at least 60% Filipino equity will be allowed to
own land."
But this is not all. Respondent AMARI points to P.D. No. 1085, the charter of the
respondent PEA, which conveyed to it the reclaimed lands within the Manila-Cavite
Coastal Road and Reclamation Project (MCCRRP) including the lands subject of the case
at bar and which authorized respondent PEA to dispose of said lands. Pursuant to
existing laws, rules, and regulations, it appears that respondent PEA has the discretion to
pay the entity reclaiming the lands a portion or percentage of said lands. P.D. No. 1085
pertinently provides:

"WHEREAS, the National Government acting through the Department of Public Highways
is presently undertaking pursuant to the provisions of Section 3(m) of Republic Act No.
5137, as amended by Presidential Decree No. 3-A, the reclamation of a portion of the
foreshore and offshore areas of the Manila Bay from the Cultural Center of the Philippines
passing through Pasay City, Paraaque, Las Pias, Zapote, Bacoor up to Cavite City;

WHEREAS, in the implementation of the above-cited laws bidding was held for the
reclamation works and the corresponding contract awarded to the Construction and
Development Corporation of the Philippines;

WHEREAS, it is in the public interest to convert the land reclaimed into a modern city and
develop it into a governmental, commercial, residential and recreational complex and
this is better accomplished through a distinct entity organized for the purpose;
NOW, THEREFORE, I FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution, do hereby decree and order the following:

The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Construction and Development
Corporation of the Philippines dated November 20, 1973 and/or any other contract or
reclamation covering the same area is hereby transferred, conveyed and assigned to the
ownership and administration of the Public Estates Authority established pursuant to P.D.
No. 1084; Provided, however, That the rights and interest of the Construction and
Development Corporation of the Philippines pursuant to the aforesaid contract shall be
recognized and respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the
obligations of the Republic of the Philippines (Department of Public Highways) arising
from, or incident to, the aforesaid contract between the Republic of the Philippines and
the Construction and Development Corporation of the Philippines.

In consideration of the foregoing transfer and assignment, the Public Estates Authority
shall issue in favor of the Republic of the Philippines the corresponding shares of stock in
said entity with an issued value of said shares of stock shall be deemed fully paid and
non-assessable.

The Secretary of Public Highways and the General Manager of the Public Estates
Authority shall execute such contracts or agreements, including appropriate agreements
with the Construction and Development Corporation of the Philippines, as may be
necessary to implement the above.

Special land patent/patents shall be issued by the Secretary of Natural Resources in

favor of the Public Estates Authority without prejudice to the subsequent transfer to the
contractor or his assignees of such portion or portions of the land reclaimed or to be
reclaimed as provided for in the above-mentioned contract. On the basis of such patents,
the Land Registration Commission shall issue the corresponding certificates of title."
Former President Corazon C. Aquino also implemented P.D. No. 1085 by issuing Special
Patent No. 3517 ceding absolute rights over the said properties to respondent PEA, which
rights include the determination whether to use parts of the reclaimed lands as
compensation to the contractor, viz:

"TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:

WHEREAS, under Presidential Decree No. 1085 dated February 4, 1977 the ownership
and administration of certain reclaimed lands have been transferred, conveyed and
assigned to the Public Estates Authority, a government entity created by virtue of
Presidential Decree No. 1084 dated February 4, 1977, subject to the terms and
conditions imposed in said Presidential Decree No. 1085;

WHEREAS, pursuant to said decree the parcels of land so reclaimed under the Manila-
Cavite Coastal Road and Reclamation Project (MCCRRP) of the Public Estates Authority
consist of a total area of 1,915,894 square meters surveyed under Plans RL-13-000002 to
RL-13-000005 situated in the Municipality of Paraaque;

NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and
in conformity with the provisions thereof and of Presidential Decree No. 1085,
supplemented by Commonwealth Act No. 141, as amended, there are hereby granted
and conveyed unto the Public Estates Authority the aforesaid tracts of land containing a
total area of one million nine hundred fifteen thousand eight hundred ninety-four (1,9
15,894) square meters; the technical descriptions of which are hereto attached and
made an integral part hereof;
TO HAVE AND TO HOLD the said tracts of land, with appurtenances thereunto of right
belonging unto the Public Estates Authority, subject to private `rights, if any there be,
and to the condition that the said land shall be used only for the purposes authorized
under Presidential Decree No. 1085;

IN TESTIMONY WHEREOF, and by authority vested in me by law, I, CORAZON C. AQUINO,

President of the Philippines, hereby caused these letters to be made patent and the seal
of the Republic of the Philippines to be hereunto affixed."
Respondent AMARI further claims that the administration of former President Fidel V.
Ramos upheld the legality of the original JVA. On the other hand, it alleges that the
amended JVA was the subject of prior exhaustive study and approval by the Office of the
General Corporate Counsel, and the Government Corporate Monitoring and Coordinating
Committee composed of the Executive Secretary of Finance, Secretary of Budget and
Management, Secretary of Trade and Industry, the NEDA Director-General, the head of
the Presidential Management Staff, the Governor of the Bangko Sentral ng Pilipinas and
the Office of the President.[4] The amended JVA was executed on March 30, 1999 and
approved on May 28, 1999 under the administration of former President Joseph E.
Estrada.[5]

In sum, the records give color to the claim of respondent AMARI that it should not be
blamed when it consummated the JVA and AJVA with its co-respondent PEA. It relied on
our laws enacted under the 1935, 1973 and 1987 Constitutions and their interpretations
by the executive departments spanning the governments of former Presidents Aquino,
Ramos and Estrada, all favorable to the said JVA and AJVA. Finding no legal impediments
to these contracts, it claims to have invested some P9 billion on the reclamation project.

Should this P9 billion investment just come to naught? The answer, rooted in the concept
of fundamental fairness and anchored on equity, is in the negative. Undoubtedly, our
Decision of July 26, 2002 is one of first impression as the ponente himself described it. As
one of first impression, it is not unexpected that it will cause serious unsettling effects on
property rights which could have already assumed the color of vested rights. Our case
law is no stranger to these situations. It has consistently held that new doctrines should
only apply prospectively to avoid inequity and social injustice. Thus in Co vs. Court of
Appeals, et al,[6] this Court, thru Chief Justice Andres Narvasa, held:

"The principle of prospectivity of statutes, original or amendatory, has been applied in

many cases. These include: Buyco v. PNB, 961, (sic) 2 SCRA 682 (June 30, 1961), holding
that Republic Act No. 1576 which divested the Philippine National Bank of authority to
accept back pay certificates in payment of loans, does not apply to an offer of payment
made before effectivity of the act; Lagardo v. Masaganda, et al., 5 SCRA 522 (June 30,
1962), ruling that RA 2613, as amended by RA 3090 on June, 1961, granting to inferior
courts jurisdiction over guardianship cases, could not be given retroactive effect, in the
absence of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the effect that Sections 9
and 10 of Executive Order No. 90, amending Section 4 of PD 1752, could have no
retroactive application; People v. Que Po Lay, 94 SCRA 640, holding that a person cannot
be convicted of violating Circular No. 20 of the Central Bank, when the alleged violation
occurred before publication of the Circular in the Official Gazette; Baltazar v. CA, 104
SCRA 619, denying retroactive application to P.D. No. 27 decreeing the emancipation of
tenants from the bondage of the soil, and P.D. No. 316 prohibiting ejectment of tenants
from rice and corn farm holdings, pending the promulgation of rules and regulations
implementing P.D. No. 27; Nilo v. Court of Appeals, 128 SCRA 519, adjudging that RA
6389 which removed `personal cultivation' as a ground for the ejectment of a tenant
cannot be given retroactive effect in the absence of a statutory statement for
retroactivity; Tac-An v. CA, 129 SCRA 319, ruling that the repeal of the old Administrative
Code by RA 4252 could not be accorded retroactive effect; Ballardo v. Borromeo, 161
SCRA 500, holding that RA 6389 should have only prospective application; (see also
Bonifacio v. Dizon, 177 SCRA 294 and Balatbat v. CA, 205 SCRA 419).

The prospectivity principle has also been made to apply to administrative rulings and
circulars, to wit: ABS-CBN Broadcasting Corporation v. CTA, October 12, 1981, 108 SCRA
142, holding that a circular or ruling of the Commissioner of Internal Revenue may not be
given retroactive effect adversely to a taxpayer; Sanchez v. COMELEC, 193 SCRA 317,
ruling that Resolution No. 90-0590 of the Commission on Elections, which directed the
holding of recall proceedings, had no retroactive application; Romualdez v. CSC, 197
SCRA 168, where it was ruled that CSC Memorandum Circular No. 29, s. 1989 cannot be
given retrospective effect so as to entitle to permanent appointment an employee whose
temporary appointment had expired before the Circular was issued.

The principle of prospectivity has also been applied to judicial decisions which, `although
in themselves not laws, are nevertheless evidence of what the laws mean, (this being)
the reason why under Article 8 of the New Civil Code, Judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system.'

So did this Court hold, for example, in People v. Jabinal, 55 SCRA 607, 611:
`It will be noted that when appellant was appointed Secret Agent by the Provincial
Government in 1962, and Confidential Agent by the Provincial Commander in 1964, the
prevailing doctrine on the matter was that laid down by Us in People v. Macarandang
(1959) and People v. Lucero (1958). Our decision in People v. Mapa, reversing the
aforesaid doctrine, came only in 1967. The sole question in this appeal is: should
appellant be acquitted on the basis of our rulings in Macarandang and Lucero, or should
his conviction stand in view of the complete reversal of the Macarandang and Lucero in
Mapa?

Decisions of this Court, although in themselves not laws, are nevertheless evidence of
what the laws mean, and this is the reason why under Article 8 of the New Civil Code,
`Judicial decisions applying or interpreting the laws or the Constitution shall form a part
of the legal system.' The interpretation upon a law was originally passed, since this
Court's construction merely established the contemporaneous legislative intent that the
law thus construed intends to effectuate. The settled rule supported by numerous
authorities is a restatement of the legal maxim `legis interpretatio legis vim obtinet' - the
interpretation placed upon the written law by a competent court has the force of law. The
doctrine laid down in Lucero and Macarandang was part of the jurisprudence, hence, of
the law of the land, at the time appellant was found in possession of the firearm in
question and when he was arraigned by the trial court. It is true that the doctrine was
overruled in the Mapa case in 1967, but when a doctrine of this Court is overruled and a
different view is adopted, the new doctrine should be applied prospectively, and should
not apply to parties who had relied on the old doctrine and acted on the faith thereof.
This is specially true in the construction and application of criminal laws, where it is
necessary that the punishability of an act be reasonably foreseen for the guidance of
society.'
So, too, did the Court rule in Spouses Gauvain and Bernardita Benzonan v. Court of
Appeals, et al. (G.R. No. 97973) and Development Bank of the Philippines v. Court of
Appeals, et al. (G.R. No. 97998), January 27, 1992, 205 SCRA 515, 527-528:
`We sustain the petitioner's position. It is undisputed that the subject lot was mortgaged
to DBP as the highest bidder at a foreclosure sale on June 18, 1977, and then sold to the
petitioners on September 29, 1979.

At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as
amended was that enunciated in Monge and Tupas cited above. The petitioners
Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to
Article 8 of the Civil Code `judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines.' But while our
decisions form part of the law of the land, they are also subject to Article 4 of the Civil
Code which provides that `laws shall have no retroactive effect unless the contrary is
provided.' This is expressed in the familiar legal maxim lex prospicit, non respicit, the law
looks forward not backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already become vested or
impairs the obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3
SCRA 565 [1061 (sic)]).

The same consideration underlies our rulings giving only prospective effect to decisions
enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607
[1974] when a doctrine of this Court is overruled and a different view is adopted, the new
doctrine should be applied prospectively and should not apply to parties who had relied
on the old doctrine and acted on the faith thereof.'
A compelling rationalization of the prospectivity principle of judicial decisions is well set
forth in the oft-cited case of Chicot County Drainage Dist v. Baxter States Bank, 308 US
371, 374 [1940]. The Chicot doctrine advocates the imperative necessity to take account
of the actual existence of a statute prior to its nullification, as an operative fact negating
acceptance of "a principle of absolute retroactive invalidity."

Thus, in this Court's decision in Taada v. Tuvera, promulgated on April 24, 1985 which
declared `that presidential issuances of general application, which have not been
published, shall have no force and effect,' and as regards which declaration some
members of the Court appeared `quite apprehensive about the possible unsettling effect
(the) decision might have on acts done in reliance on the validity of those presidential
decrees' the Court said:

The answer is all too familiar. In similar situations in the past this Court had taken the
pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter
States Bank (308 U.S. 371, 374) to wit:
`The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree. Norton
v. Shellby County, 118 US 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566.

It is quite clear, however, that such broad statements as to the effect of a determination
of unconstitutionality must be taken with qualifications. The actual existence of a statute,
prior to such a determination, is an operative fact and may have consequences which
cannot justly be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects - with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, or prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal, and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.'
Much earlier, in De Agbayani v. PNB, 38 SCRA 429 concerning the effects of the
invalidation of "Republic Act No. 342, the moratorium legislation, which continued
Executive Order No. 32, issued by the then President Osmea, suspending the
enforcement of payment of all debts and other monetary obligations payable by war
sufferers," and which had been "explicitly held in Rutter v. Esteban (93 Phil. 68 [1953])
(to be) in 1953 unreasonable, and oppressive, and should not be prolonged a minute
longer" the Court made substantially the same observations, to wit:
`The decision now on appeal reflects the orthodox view that an unconstitutional act, for
that matter an executive order or a municipal ordinance likewise suffering from the
infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official
act taken under it. Its repugnancy to the fundamental law once judicially declared results
in its being to all intents and purposes a mere scrap of paper. It is understandable why it
should be so, the Constitution being supreme and paramount. Any legislative or
executive act contrary to its terms cannot survive.

Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the declaration
of nullity such challenged legislative or executive act must have been in force and had to
be complied with. This is so as until after the judiciary, in an appropriate case, declares
its invalidity, it is entitled to obedience and respect. Parties may have acted under it and
may have changed their positions. What could be more fitting than that in a subsequent
litigation regard be had to what has been done while such legislative or executive act
was in operation and presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence as a fact must be reckoned with.
This is merely to reflect awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the law of
its quality of fairness and justice then, if there be no recognition of what had transpired
prior to such adjudication.

In the language of an American Supreme Court decision: The actual existence of a

statute, prior to such a determination [of unconstitutionality], is an operative fact and
may have consequences which cannot justly be ignored. The past cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects, with respect to particular relations,
individual and corporate, and particular conduct, private and official (Chicot County
Drainage Dist. v. Baxter States Bank, 308 US 371, 374 [1940]). This language has been
quoted with approval in a resolution in Araneta v. Hill (93 Phil. 1002 [1953]) and the
decision in Manila Motor Co., Inc. v. Flores (99 Phil. 738 [1956]). An even more recent
instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva
and Co. (L-21114, Nov. 28, 1967, 21 SCRA 1095).'
Again, treating of the effect that should be given to its decision in Olaguer v. Military
Commission No. 34, declaring invalid criminal proceedings conducted during the
martial law regime against civilians, which had resulted in the conviction and
incarceration of numerous persons this Court, in Tan vs. Barrios, 190 SCRA 686, at p.
700, ruled as follows:
`In the interest of justice and consistency, we hold that Olaguer should, in principle, be
applied prospectively only to future cases and cases still ongoing or not yet final when
that decision was promulgated. Hence, there should be no retroactive nullification of final
judgments, whether of conviction or acquittal, rendered by military courts against
civilians before the promulgation of the Olaguer decision. Such final sentences should
not be disturbed by the State. Only in particular cases where the convicted person or the
State shows that there was serious denial of constitutional rights of the accused, should
the nullity of the sentence be declared and a retrial be ordered based on the violation of
he constitutional rights of the accused, and not on the Olaguer doctrine. If a retrial is no
longer possible, the accused should be released since the judgment against him is null
on account of the violation of his constitutional rights and denial of due process.

The trial of thousands of civilians for common crimes before the military tribunals and
commissions during the ten-year period of martial rule (1971-1981) which were created
under general orders issued by President Marcos in the exercise of his legislative powers
is an operative fact that may not just be ignored. The belated declaration in 1987 of the
unconstitutionality and invalidity of those proceedings did not erase the reality of their
consequences which occurred long before our decision in Olaguer was promulgated and
which now prevent us from carrying Olaguer to the limit of its logic. Thus did this Court
rule in Municipality of Malabang v. Benito, 27 SCRA 533, where the question arose as to
whether the nullity of creation of a municipality by executive order wiped out all the acts
of the local government abolished.'
It would seem, then, that the weight of authority is decidedly in favor of the proposition
that the Court's decision of September 21, 1987 in Que v. People, 154 SCRA 160 (1987)
i.e., that a check issued merely to guarantee the performance of an obligation is
nevertheless covered by B.P. Blg. 22 should not be given retrospective effect to the
prejudice of the petitioner and other persons similarly situated, who relied on the official
opinion of the Minister of Justice that such a check did not fall within the scope of B.P.
Blg. 22."

Despite the stream of similar decisions, the majority holds that it would have been
sympathetic to the plea for a prospective application of our Decision "x x x if the
prevailing law or doctrine at the time of the signing of the amended JVA was that a
private corporation could acquire alienable lands of the public domain and the Decision
annulled the law or reversed the doctrine."[7] It explains that "under the 1935
Constitution, private corporations were allowed to acquire alienable lands of the public
domain. But since the effectivity of the 1973 Constitution, private corporations were
banned from holding, except by lease, alienable lands of the public domain. The 1987
Constitution continued this constitutional prohibition."[8]
I beg to disagree. We should put section 2 of Article XII of the Constitution in its proper
perspective. It provides:

"All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands,
all other natural resources shall not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control and supervision of the
State. The State may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and conditions as
may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant." (Emphasis supplied.)
With due respect, the plea for prospectivity is based on the ground that our Decision is
novel not because it bars private corporations like respondent AMARI from acquiring
alienable lands of the public domain except by lease but because for the first time we
held, among others, that joint venture agreements cannot allow entities undertaking
reclamation of lands to be paid with portions of the reclaimed lands. This is the first case
where we are interpreting that portion of section 2, Article XII of the Constitution which
states that "x x x the exploration, development, and utilization of natural resources shall
be under the full control and supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture, or production sharing
agreements with Filipino citizens or corporations or associations at least sixty per centum
of whose capital is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years and under
such terms and conditions as may be provided by law." Indisputably, this part of section
2, Article XII of the 1987 Constitution is new as it is neither in the 1973 or 1935
Constitutions. Undoubtedly too, our Decision goes against the grain of understanding of
the said provision on the part of the Executive and Legislative Departments of our
government. The disquieting effects of our Decision interpreting said provision in a
different light cannot be gainsaid.

The majority concedes that in Benzonan,[9] we held that the sale or transfer of the land
involved in said case may no longer be invalidated because of "weighty considerations of
equity and social justice."[10] Nonetheless, the majority holds that there are "special
circumstances that disqualify AMARI from invoking equity principles," viz:[11]

"There are, moreover, special circumstances that disqualify Amari from invoking equity
principles. Amari cannot claim good faith because even before Amari signed the
Amended JVA on March 30, 1999, petitioner had already filed the instant case on April
27, 1998 questioning precisely the qualification of Amari to acquire the Freedom Islands.
Even before the filing of this petition, two Senate Committees had already approved on
September 16, 1997 Senate Committee Report No. 560. This Report concluded, after a
well-publicized investigation into PEA's sale of the Freedom Islands to Amari, that the
Freedom Islands are inalienable lands of the public domain. Thus, Amari signed the
Amended JVA knowing and assuming all the attendant risks, including the annulment of
the Amended JVA.

Amari has also not paid to PEA the full reimbursement cost incurred by PEA in reclaiming
the Freedom Islands. Amari states that it has paid PEA only P300,000,000.00 out of the
P1,894,129,200.00 total reimbursement cost agreed upon in the Amended JVA.
Moreover, Amari does not claim to have even initiated the reclamation of the 592. 15
hectares of submerged areas covered in the Amended JVA, or to have started to
construct any permanent infrastructure on the Freedom Islands. In short, Amari does not
claim to have introduced any physical improvement or development on the reclamation
project that is the subject of the Amended JVA. And yet Amari claims that it had already
spent a "whopping P9,876,108,638.00 as its total development cost as of June 30, 2002.
Amari does not explain how it spent the rest of the P9,876,108,638.00 total project cost
after paying PEA P300,000,000.00. Certainly, Amari cannot claim to be an innocent
purchaser in good faith and for value."
Again, with due respect, I beg to disagree. The alleged facts and factors cited by the
majority do not provide sufficient basis to condemn respondent AMARI of bad faith. First,
the petition at bar was filed before the amended JVA was consummated. As alleged by
the petitioner, he filed the petition to:[12]

"x x x

5.1 Compel respondent to make public all documents, facts and data related to or in
connection with the ongoing RENEGOTIATIONS between respondents PEA and AMARI,
and

5.2 Enjoin respondents from privately entering into perfecting and/or executing any
new agreement with AMARI."
Petitioner invoked section 7, Article III of the Constitution which recognizes the right of
people to information on matters of public concern and section 28, Article II of the
Constitution which provides that the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. In fine, the amended JVA was
yet inexistent at the time the petition at bar was filed and could not provide a basis for a
finding of bad faith on the part of respondent AMARI. Secondly, Senate Committee
Report No. 560 also pertains to the original JVA. Precisely because of the report, former
President Ramos issued Presidential Order No. 365 which established a presidential legal
task force to study the legality of the original JVA. The legal task force did not reach the
same conclusions as the Senate. In any event, the original JVA was renegotiated and was
approved by former President Estrada on May 28, 1999 following intensive review by the
Office of the General Corporate Counsel and the Government Corporate Monitoring and
Coordinating Committee which, as aforestated, is composed of the Executive Secretary,
the Secretary of Finance, the Secretary of Budget and Management, the Secretary of
Trade and Industry, the NEDA Director General, the Head of the Presidential Management
Staff and the Governor of the Bangko Sentral ng Pilipinas and the Office of the President.
To be sure, the value of Senate Report No. 560 is not as proof of good or bad faith of any
party but as a study in aid of legislation. As a legislative body, the Senate does not
determine adjudicative facts. Thirdly, the allegation that respondent AMARI has not
complied with its obligation to PEA is a matter that cannot be resolved in the case at bar.
If at all it can be raised, it is PEA that should raise it in a proper action for breach of
contract or specific performance. This Court is not a `trier of facts and it cannot resolve
these allegations that respondent AMARI violated its contract with PEA. The majority
cannot condemn respondent AMARI of acting in bad faith on the basis of patently
inadmissible evidence without running afoul of the rudimentary requirements of due
process. At the very least, the majority should hear respondent AMARI on the issue of its
alleged bad faith before condemning it to certain bankruptcy.

This is not all. There is another dimension of unfairness and inequity suffered by
respondent AMARI as a consequence of our Decision under reconsideration. It cannot be
denied that respondent AMARI spent substantial amount of money (the claim is P9
billion), fulfilling its obligation under the AJVA, i.e., provide the financial, technical,
logistical, manpower, personnel and managerial requirements of the project. Our
Decision is silent as a sphinx whether these expenses should be reimbursed. Respondent
AMARI may not be paid with reclaimed lands, but it can be remunerated in some other
ways such as in cash. Our omission to order that respondent AMARI be paid
commensurate to its expenses does not sit well with our decision in Republic of the
Philippines vs. CA and Republic Estate Corporation, et al.[13]where we held:

"x x x

Although Pasay City and RREC did not succeed in their undertaking to reclaim any area
within the subject reclamation project, it appearing that something compensable was
accomplished by them, following the applicable provision of law and hearkening to the
dictates of equity, that no one, not even the government shall unjustly enrich
oneself/itself at the expense of another, we believe, and so hold, that Pasay City and
RREC should be paid for the said actual work done and dredge-fill' poured in..."
Needless to state, the government will be unjustly enriched if it will not be made to
compensate the respondent AMARI for the expenses it incurred in reclaiming the lands
subject of the case at bar.

We should strive for consistency for rights and duties should be resolved with reasonable
predictability and cannot be adjudged by the luck of a lottery. Just a month ago or on
March 20, 2003 this Court en banc resolved a motion for reconsideration in Land Bank
vs. Arlene de Leon, et al., G.R. No. 143275. In this case, we resolved unanimously to give
a prospective effect to our Decision which denied LBP's petition for review. Written by our
esteemed colleague, Mr. Justice Corona, our resolution held:

"Be that as it may, we deem it necessary to clarify our Decision's application to and
effect on LBP's pending cases filed as ordinary appeals before the Court of Appeals. It
must first be stressed that the instant case poses a novel issue; our Decision herein will
be a landmark ruling on the proper way to appeal decisions of Special Agrarian Courts.
Before this case reached us, LBP had no authoritative guideline on how to appeal
decisions of Special Agrarian Courts considering the seemingly conflicting provisions of
Sections 60 and 61 of RA 6657.

More importantly, the Court of Appeals has rendered conflicting decisions on this precise
issue. On the strength of Land Bank of the Philippines vs. Hon. Feliciano Buenaventura,
penned by Associate Justice Salvador Valdez, Jr. of the Court of Appeals, certain decisions
of the appellate court held that an ordinary appeal is the proper mode. On the other
hand, a decision of the same court, penned by Associate Justice Romeo Brawner and
subject of the instant review, held that the proper mode of appeal is a petition for review.
In another case, the Court of Appeals also entertained an appeal by the DAR filed as a
petition for review.

On account of the absence of jurisprudence interpreting Sections 60 and 61 of RA 6657

regarding the proper way to appeal decisions of Special Agrarian Courts as well as the
conflicting decisions of (the) Court of Appeals thereon, LBP cannot be blamed for availing
of the wrong mode. Based on its own interpretation and reliance on the Buenaventura
ruling, LBP acted on the mistaken belief that an ordinary appeal is the appropriate
manner to question decisions of Special Agrarian Courts.

Hence, in the light of the aforementioned circumstances, we find it proper to emphasize

the prospective application of our Decision dated September 10, 2002. A prospective
application of our Decision is not only grounded on equity and fair play but also based on
the constitutional tenet that rules of procedure shall not impair substantive rights.

In accordance with our constitutional power to review rules of procedure of special

courts, our Decision in the instant case actually lays down a rule of procedure,
specifically, a rule on the proper mode of appeal from decisions of Special Agrarian
Courts. Under Section 5 (5), Article VIII of the 1987 Philippine Constitution, rules of
procedure shall not diminish, increase or modify substantive rights. In determining
whether a rule of procedure affects substantive rights, the test is laid down in Fabian vs.
Desierto, which provides that:
`[I]n determining whether a rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the
test is whether the rule really regulates procedure, that is, the judicial process for
enforcing rights and duties recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them. If the rule takes away a vested
right, it is not procedural. If the rule creates a right such as the right to appeal, it may be
classified as a substantive matter, but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.'

We hold that our Decision, declaring a petition for review as the proper mode of appeal
from judgments of Special Agrarian Courts, is a rule of procedure which affects
substantive rights. If our ruling is given retroactive application, it will prejudice LBP's
right to appeal because pending appeals in the Court of Appeals will be dismissed
outright on mere technicality thereby sacrificing the substantial merits thereof. It would
be unjust to apply a new doctrine to a pending case involving a party who already
invoked a contrary view and who acted in good faith thereon prior to the issuance of said
doctrine."
Our Decision under reconsideration has a far reaching effect on persons and entities
similarly situated as the respondent AMARI. Since time immemorial, we have allowed
private corporations to reclaim lands in partnership with government. On the basis of
age-old laws and opinions of the executive, they entered into contracts with government
similar to the contracts in the case at bar and they invested huge sums of money to help
develop our economy. Local banks and even international lending institutions have lent
their financial facilities to support these reclamation projects which government could
not undertake by itself in view of its scant resources. For them to lose their invaluable
property rights when they relied in good faith on these unbroken stream of laws of
congress passed pursuant to our 1935, 1973 and 1987 Constitutions and executive
interpretations is a disquieting prospect. We cannot invite investors and then decapitate
them without due process of law.

I vote to give prospective application to our Decision of July 26, 2002.

--------------------------------------------------------------------------------
[1] Private respondent cites DOJ Opinion No. 100 dated July 13, 1994 rendered by then
Secretary of Justice Franklin Drilon, holding:

x x x Water is a natural resource, the development, exploitation or utilization of which is

reserved for citizens of the Philippines, or corporations or associations at least 60% of
the capital of which is owned by such citizens (Opinion No. 243, Secretary Of Justice, s.
1989).

x x x The appropriation of waters is the acquisition of rights over the use of waters or the
taking or divesting of waters from natural source in the manner and for any purpose
allowed by law (Art. 9, id.).

It may be observed, however, that while the Water Code imposes a nationality
requirement for the grant of water permits, the same refers to the privilege "to
appropriate and use water." We have consistently interpreted this to mean the extraction
of water directly from its natural source. However, once removed therefrom, they cease
to be part of the natural resources of the country and are subject of ordinary commerce
and they can be acquired by foreigners (Sec. of Justice Opn. No. 55, s. 1939; No. 173, s.
1984; No. 243, s. 1989).
[2] CP-Senate, TSP, 8 February 1990, 12th Congress, Regular Session, S.B. No. 1285 pp.
9-12.

[3] Ibid.

[4] Supplement to Motion for Reconsideration, p. 16.

[5] Ibid.

[6] 227 SCRA 444, 448-455 (1993).

[7] Resolution, p. 6.

[8] Ibid.

[9] Op cit.

[10] Resolution, p. 8.
[11] Id., p. 9.

[12] Petition, p. 5.

[13] 299 SCRA 199 (1998).

--------------------------------------------------------------------------------

DISSENTING OPINION

YNARES-SANTIAGO, J.:

The moving force behind the main decision is sound. It proceeds from policies embodied
in our Constitution that seek to guard our natural resources from the exploitation of the
few and to put our precious land under the stewardship of the common Filipino. Yet we,
perched upon our lofty seat in the heights of Olympus, cannot close our eyes to the far-
reaching effects that the decision will have. Neither can we pretend that practical
realities supported by our legal system have to be conceded. These considerations are
so basic that we cannot ignore them. They represent very fundamental rules of law,
upon which decades of Philippine jurisprudence have been built.

I, for one, refuse to close my eyes or remain silent.

The sweeping invalidation of the Amended Joint Venture Agreement (JVA) between the
Public Estates Authority (PEA) and Amari Coastal Bay Development Corporation
(hereinafter, Amari) has left me ill at ease. The draft resolution and the main decision
have taken great pains to explain the majority position with copious research and
detailed exposition. However, scant consideration was given to the fact that
P9,876,108,638.00 had already been spent by the private respondent and that the
voiding of the Amended JVA would compel all the parties to return what each has
received.[1] I submit that there was no need to resort to such a drastic measure.

First of all, a historical analysis of the laws affecting reclaimed lands indicates that the
same have been treated by law as alienable.

Article 5 of the Spanish Law of Waters of 1866 reads:

Lands reclaimed from the sea in consequence of works constructed by the State, or by
the provinces, pueblos, or private persons, with proper permission, shall become the
property of the party constructing such works, unless otherwise provided by the terms of
the grant of authority.
The foregoing clearly mandates that reclaimed property shall belong to the party who
undertook the works. It was on the basis of this provision of law that the Manila Port
Area, which was developed from land dredged by the Department of Public Works and
Communications during the construction of the Manila South Harbor, became private
property of the National Government and registered in its name under the Torrens
system.

Republic Act No. 1899, and Act to Authorize the Reclamation of Foreshore Lands by
Chartered Cities and Municipalities, provided:

Sec. 2. Any and all lands reclaimed, as herein provided, shall be the property of the
respective municipalities or chartered cities; Provided, however, That the new foreshore
along the reclaimed areas shall continue to be the property of the National Government.
Again on the basis of the above provision, the Pasay City Government entered into a
reclamation contract with the Republic Resources Realty Corporation under which a
portion of the reclaimed land shall be conveyed to the latter corporation.[2] However,
before the reclamation was completed, then President Ferdinand E. Marcos issued
Presidential Decree No. 3-A, which provided:

The provisions of any law to the contrary notwithstanding, the reclamation of areas
under water, whether foreshore or inland, shall be limited to the National Government or
any person authorized by it under a proper contract.

All reclamations made in violation of this provision shall be forfeited to the State without
need of judicial action.

Contracts for reclamation still legally existing or whose validity has been accepted by the
National Government shall be taken over by the National Government on the basis of
quantum meruit, for proper prosecution of the project involved by administration.
Thus, the Pasay reclamation project was taken over by the National Government. Later,
the Department of Public Works and Highways (DPWH) entered into a contract with the
Construction and Development Corporation of the Philippines (CDCP) for the reclamation
of the same area and agreed on a sharing arrangement of the land to be reclaimed.

In 1979, PD 1084 was issued, creating the PEA. EO 525 was issued, Section 3 of which
states:

All lands reclaimed by PEA shall belong to or be owned by the PEA which shall be
responsible for its administration, development, utilization or disposition in accordance
with the provisions of Presidential Decree No. 1084. Any and all income that the PEA
may derive from the sale, lease or use of reclaimed lands shall be used in accordance
with the provisions of Presidential Decree No. 1084.
Clearly, all the foregoing statutes evince a legislative intent to characterize reclaimed
lands as alienable public lands. In other words, there was never an intention to
categorize reclaimed lands as inalienable lands of the public domain; rather they were
expressly made private property of the National Government subject to disposition to the
person who undertook the reclamation works.

Inasmuch as reclaimed lands are not public lands, the provisions of the Constitution
prohibiting the acquisition by private corporations of lands of the public domain do not
apply. In the same vein, the Court, in Director of Lands v. Intermediate Appellate Court,
et al.,[3] held that public lands which have become private may be acquired by private
corporations. This dictum is clearly enunciated by Chief Justice Claudio Teehankee in his
concurring opinion, viz:

Such ipso jure conversion into private property of public lands publicly held under a bona
fide claim of acquisition or ownership is the public policy of the Act and is so expressly
stated therein. By virtue of such conversion into private property, qualified corporations
may lawfully acquire them and there is no "alteration or defeating" of the 1973
Constitution's prohibition against corporations holding or acquiring title to lands of the
public domain, as claimed in the dissenting opinion, for the simple reason that no public
lands are involved.[4]
Indeed, the Government has the authority to reclaim lands, converting them into its own
patrimonial property. It can contract out the reclamation works and convey a portion of
the reclaimed land by way of compensation.

Secondly, the reason behind the total nullification of the Amended JVA must be
reexamined. I believe there is some confusion with regard to its infirmities. We must
remember that the Amended JVA is a contract and, as such, is governed by the Civil
Code provisions on Contracts, the essential requisites of which are laid out in the
following provision:

Art. 1318. There is no contract unless the following requisites concur:

(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
(3) Cause of the obligation which is established.[5]
The main decision states that the Amended JVA is void because its "object" is contrary
law, morals, good customs, public order or public policy, and that the "object" is also
outside the commerce of man, citing as authority Article 1409 of the Civil Code.
However, it has been opined, and persuasively so, that the object of a contract is either
the thing, right or service which is the subject matter of the obligation arising from the
contract.[6] In other words, the object of the contract is not necessarily a physical thing
that by its very nature cannot be the subject of a contract. The object of a contract can,
as it appears so in this case, contemplate a service. I submit, therefore, that the object
herein is not the reclaimed land, no matter how much emotion these piles of wet soil
have stirred up. The proper object is the service that was to be rendered by Amari, which
is the act of reclamation. Surely, reclamation, in and of itself, is neither contrary to law,
morals, good customs, public order nor to public policy. The act of reclamation is most
certainly not outside the commerce of man. It is a vital service utilized by the Republic
to increase the national wealth and, therefore, cannot be cited as an improper object
that could serve to invalidate a contract.

Furthermore, in Section 1.1 (g) of the Amended JVA, the term "Joint Venture Proceeds" is
defined as follows:

"Joint Venture Proceeds" shall refer to all proceeds, whether land or money or their
equivalent arising from the project or from the sale, lease or any other form or
disposition or from the allocation of the Net Usable Area of the Reclamation Area.
It is actually upon this provision of the Amended JVA that its validity hinges. If it is the
contemplated transfer of lands of the public domain to private corporation which renders
the Amended JVA constitutionally infirm, then resort to the alternative prestation referred
to in this provision will cure the contract. The Civil Code provision on alternative
obligations reads as follows:

Art. 1199. A person alternatively bound by different prestations shall completely perform
one of them.

The creditor cannot be compelled to receive part of one and part of the other
undertaking.
In an alternative obligation, there is more than one object, and the fulfillment of one is
sufficient, determined by the choice of the debtor who generally has the right of election.
[7] From the point of view of Amari, once it fulfills its obligations under the Amended JVA,
then it would be entitled to its stipulated share of the Joint Venture Profits. In this
instance, Amari would stand as creditor, with PEA as the debtor who has to choose
between two payment forms: 70% of the Joint venture Profits, in the form of cash or a
corresponding portion of the land reclaimed.[8] Since it has been ruled that the transfer
of any of the reclaimed lands to Amari would be unconstitutional,[9] one of the
prestations of this alternative obligation has been rendered unlawful. In such case, the
following Civil Code provision becomes pertinent:

Art. 1202. The debtor shall lose the right of choice when among the prestations whereby
he is alternatively bound, only one is practicable.
If all the prestations, except one, are impossible or unlawful, it follows that the debtor
can choose and perform only one. The obligation ceases to be alternative, and is
converted into a simple obligation to perform the only feasible or practicable prestation.
[10] Even if PEA had insisted on paying Amari with tracts of reclaimed land, it could not
have done so, since it had no right to choose undertakings that are impossible or illegal.
[11]

We must also remember that, in an alternative obligation, the fact that one of the
prestations is found to be unlawful does not result in the total nullity of the Amended JVA.
The Civil Code provides:
Art. 1420. In case of a divisible contract, if the illegal terms can be separated from the
legal ones, the latter may be enforced.
As a general rule, Article 1420 is applied if there are several stipulations in the contract,
some of which are valid and some void. If the stipulations can be separated from each
other, then those which are void will not have any effect, but those which are valid will
be enforced. In case of doubt, the contract must be considered as divisible or separable.
[12] The contract itself provides for severability in case any of its provisions are deemed
invalid.[13] Curiously, the main decision makes no mention of the alternative form of
payment provided for in Section 1.1 (g) of the Amended JVA. A reading of the main
decision would lead one to conclude that the transfer of reclaimed land is the only form
of payment contemplated by the parties.[14] In truth, the questionable provisions of the
Amended JVA can be excised without going against the intent of the parties or the nature
of the contract. Removing all references to the transfer of reclaimed land to Amari or its
transferees will leave us with a simple contract for reclamation services, to be paid for in
cash.

It should also be noted that declaring the Amended JVA to be completely null and void
would result in the unjust enrichment of the state. The Civil Code provision on human
relations states:

Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.[15]
Again, in Republic v. Court of Appeals,[16] it was the finding of this Court that the
reclamation efforts of the Pasay City government and the RREC resulted in "something
compensable." Mr. Justice Reynato Puno explained it best in his concurring opinion:

Given all the facts, Pasay City and RREC cannot be left uncompensated. The National
Government should not be unjustly enriched at the expense of Pasay City and RREC.
Pasay City and RREC deserve to be compensated quantum meruit and on equitable
consideration for their work.[17]
Following the applicable provision of law and hearkening to the dictates of equity, that no
one, not even the government, shall unjustly enrich himself at the expense of another,
[18] I believe that Amari and its successors in interest are entitled to equitable
compensation for their proven efforts, at least in the form of cash, as provided for under
the Amended JVA.

At this juncture, I wish to express my concern over the draft resolution's pronouncement
that the Court's Decision can be made to apply retroactively because "(t)he Decision,
whether made retroactive or not, does not change the law since the Decision merely
reiterates the law that prevailed since the effectivity of the 1973 Constitution." This
statement would hold true for the constitutions, statutes and other laws involved in the
case that existed before the Decision was rendered. However, the issues involved are so
novel that even the esteemed ponente concedes that this case is one of first impression.

For example, Section 3 of E.O. 525 declares that:

All lands reclaimed by PEA shall belong to or be owned by the PEA which shall be
responsible for its administration, development, utilization or disposition in accordance
with the provisions of Presidential Decree No. 1084.
Can we really blame respondents for concluding that any kind of land reclaimed by PEA
becomes the latter's patrimonial property? It is spelled out as such. It was only the filing
of the present petition which brought to light the possibility that this provision may have
already been modified, even partially repealed by Section 4, Subsections 4, 14 and 15 of
the Revised Administrative Code of 1987.[19]

Another doctrine which was set aside by the Court's Decision is the general rule that
alienable land of the public domain automatically becomes private land upon the grant
of a patent or the issuance of a certificate of title.[20] Curiously, this legal principle was
held to be inapplicable to government entities,[21] despite several analogous cases
which may have reasonably led the respondents to a different conclusion.[22]
Most significantly, the ruling laid down by the Decision that: "In the hands of the
government agency tasked and authorized to dispose of alienable or disposable lands of
the public domain, these lands are still public, not private land,"[23] is not based on any
previous jurisprudence, nor is it spelled out in any law. It is the result of a process of
induction and interpretation of several laws which have not been set side by side in such
a manner before.[24] This pronouncement has never been made before, and yet now it
is law. So when the Decision claimed that it, " does not change the law," and that it,
"merely reiterates the law that prevailed since the effectivity of the 1973 Constitution,"
we believe such a statement to be inaccurate, to say the least.

Since new doctrines, which constitute new law, are espoused in the Decision, these
should be subject to the general rule under the Civil Code regarding prospective
application:

Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.
Moreover, lex prospicit, non respicit the law looks forward not backward. If decisions
that repeal the rulings in older ones are given only prospective application,[25] why
should not doctrines that resolve questions of first impression be treated in like manner?
Therefore, it is my considered view that, if the amended JVA should be nullified, the
ruling must be given prospective effect and all vested rights under contracts executed
during the validity thereof must be respected.

The foregoing are basic principles in civil law which have been brushed aside in the wake
of this Court's haste to stamp out what it deems unjust. Zeal in the pursuit of justice is
admirable, to say the least, especially amid the cynicism and pessimism that has
prevailed among our people in recent times. However, in our pursuit of righteousness,
we must not lose sight of our duty to dispense justice with an even hand, always mindful
that where we tread, the rights of others may be trampled upon underfoot.

Therefore, I vote to GRANT the Motion for Reconsideration and to DENY the petition for
lack of merit.

--------------------------------------------------------------------------------
[1] IV TOLENTINO 632, (1990 ed.), citing Perez Gonzalez & Alguer; I-II Enneccerus, Kipp &
Wolff 364-366; 3 Von Tuhr 311; 3 Fabres 231.

[2] See Republic v. Court of Appeals, 359 Phil. 530 (1998).

[3] G.R. No. 73002, 29 December 1986, 146 SCRA 509.

[4] Id., at pp. 526-527.

[5] Emphasis supplied.

[6] IV Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines
(Quezon City, 1991), p. 520.

[7] Id., p. 203.

[8] Amended Joint Venture Agreement, Sections 1.1 (g) and 5.1, Private Respondent's
Annex B.

[9] Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002.

[10] Supra note 2, at 209.

[11] Legarda v. Miailhe, 88 Phil. 637 (1951).

[12] Supra note 2, at 642, citing 4 Llerna 93.

[13] Amended Joint Venture Agreement, Section 7.4, Private Respondent's Annex B.

[14] Chavez v. Public Estates Authority, supra.

The decision states:

xxx xxx xxx

AMARI and PEA will share, in the proportion of 70 percent and 30 percent, respectively,
the total net usable area which is defined in the Amended JVA as the total reclaimed area
less 30 percent earmarked for common areas.

xxx xxx xxx

Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5
hectares of reclaimed land which will be titled in its name. (Emphasis in the original)
[15] Emphasis supplied.

[16] 359 Phil. 530 (1998).

[17] Republic v. Court of Appeals, 359 Phil. 530 (1998), (concurring opinion of Puno, J.),
citing Civil Code, art. 19.

[18] Republic v. Court of Appeals, supra.

[19] Chavez v. Public Estates Authority, supra.

[20] Sumail v. Judge of the Court of First Insatnce of Cotabato, 96 Phil. 946 (1955).

[21] Chavez v. Public Estates Authority, supra.

[22] Heirs of Gregorio Tengco v. Heirs of Jose Aliwalas, G.R. No. 77541, 29 November
1988, 168 SCRA 198; Manalo v. Intermediate Appellate Court, G.R. No. 64753, 26 April
1989, 172 SCRA 795.

[23] Chavez v. Public Estates Authority, supra.

[24] These laws are C.A. 141, P.D. 1084, P.D. 1085, P.D. 3-A, E.O. 525, the 1973
Constitution and the 1987 Constitution, among others.

[25] People v. Jabinal, 154 Phil. 565 (1974); Benzonan v. Court of Appeals, G.R. No.
97973, 27 January 1992, 205 SCRA 515.

--------------------------------------------------------------------------------

DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

It is after deep introspection that I am constrained to dissent from the denial by the
majority of the motions for reconsideration filed by respondents PEA and AMARI.
Chief Justice Charles Evans Hughes of the United States Supreme Court stated that a
dissent is of value because it is "an appeal to the brooding spirit of the law, to the
intelligence of a future day, when a later decision may possibly correct the error into
which the dissenting judge believes the court to have been betrayed."[1]

While I joined in the initial grant of the petition, I realized, however, that the tenor of our
interpretation of the Constitutional prohibition on the acquisition of reclaimed lands by
private corporations is so absolute and circumscribed as to defeat the basic objectives of
its provisions on "The National Economy and Patrimony."[2]

The Constitution is a flexible and dynamic document. It must be interpreted to meet its
objectives under the complex necessities of the changing times. Provisions intended to
promote social and economic goals are capable of varying interpretations. My view
happens to differ from that of the majority. I am confident, however, that the demands of
the nation's economy and the needs of the majority of our people will bring the majority
Decision and this Dissenting Opinion to a common understanding. Always, the goals of
the Constitution must be upheld, not defeated nor diminished.

Infrastructure building is a function of the government and ideally should be financed

exclusively by public funds. However, present circumstances show that this cannot be
done. Thus, private corporations are encouraged to invest in income generating national
construction ventures.

Investments on the scale of reclamation projects entail huge amounts of money. It is a

reality that only private corporations can raise such amounts. In the process, they assist
this country in its economic development. Consequently, our government should not
take arbitrary action against these corporate developers. Obviously, the courts play a
key role in all disputes arising in this area of national development.

This is the background behind my second hard look at the issues and my resulting
determination to dissent.

The basic issue before us is whether a private corporation, such as respondent AMARI,
can acquire reclaimed lands.

The Decision being challenged invokes the Regalian doctrine that the State owns all
lands and waters of the public domain. The doctrine is the foundation of the principle of
land ownership that all lands that have not been acquired by purchase or grant from the
Government belong to the public domain.[3] Property of public dominion is that devoted
to public use such as roads, canals, rivers, torrents, ports and bridges constructed by the
State, riverbanks, shores, roadsteads and that of a similar character.[4] Those which
belong to the State, not devoted to public use, and are intended for some public service
or for the development of the national wealth, are also classified as property of public
dominion.[5] All other property of the State which is not of public dominion is
patrimonial.[6] Also, property of public dominion, when no longer intended for public use
or public service, shall form part of the patrimonial property of the State.[7]

In our Decision sought to be reconsidered,[8] we held that the following laws, among
others, are applicable to the particular reclamation project involved in this case: the
Spanish Law of Waters of 1866, the Civil Code of 1889, Act No. 1654 enacted by the
Philippine Commission in 1907, Act No. 2874 (the Public Land Act of 1919), and
Commonwealth Act No. 141 of the Philippine National Assembly, also known as the Public
Land Act of 1936. Certain dictums are emphasized. Reclaimed lands of the government
may be leased but not sold to private corporations and private individuals. The
government retains title to lands it reclaims. Only lands which have been officially
delimited or classified as alienable shall be declared open to disposition or concession.

Applying these laws and the Constitution, we then concluded that the submerged areas
of Manila Bay are inalienable natural resources of the public domain, outside the
commerce of man. They have to be classified by law as alienable or disposable
agricultural lands of the public domain and have to be declared open to disposition.
However, there can be no classification and declaration of their alienable or disposable
nature until after PEA has reclaimed these submerged areas. Even after the submerged
areas have been reclaimed from the sea and classified as alienable or disposable, private
corporations such as respondent AMARI, are disqualified from acquiring the reclaimed
land in view of Section 3, Article XII of the Constitution, quoted as follows:

"Lands of the Public domain are classified into agricultural, forest or timbre, mineral
lands, and national parks. Agricultural lands of the public domain may be further
classified by law according to the uses to which they may be devoted. Alienable lands of
the public domain shall be limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the public domain except by lease, for
a period not exceeding twenty-five years, renewable for not more than twenty-five years,
and not to exceed one thousand hectares in area. Citizens of the Philippines may lease
not more than five hundred hectares, or acquire not more than twelve hectares thereof
by purchase, homestead, or grant.

"Taking into account the requirements of conservation, ecology, and development, and
subject to the requirements of agrarian reform, the Congress shall determine, by law, the
size of lands of the public domain which may be acquired, developed, held, or leased and
the conditions therefor."
I dissent from the foregoing conclusions which are based on general laws mainly of
ancient vintage. Reclaimed lands, especially those under the Manila-Cavite Coastal Road
and Reclamation Project (MCCRRP), are governed by PD 1084[9] and PD 1085[10]
enacted in 1976 and 1977, respectively, or more than half a century after the enactment
of the Public Lands Acts of 1919 and 1936.

PD 1084 and PD 1085 provide:

PD 1084-

"Section 4. Purposes. The Authority is hereby created for the following purposes:

a. To reclaim land, including foreshore and submerged areas, by dredging, filling or

other means, or to acquire reclaimed land;

b. To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and
sell any and all kinds of lands, buildings, estates and other forms of real property, owned,
managed, controlled and/or operated by the government;

c. To provide for, operate or administer such services as may be necessary for the
efficient, economical and beneficial utilization of the above properties. (Emphasis ours)
PD 1085

"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Construction and Development
Corporation of the Philippines dated November 20, 1973 and/or any other contract or
reclamation covering the same area is hereby transferred, conveyed and assigned to the
ownership and administration of the Public Estates Authority established pursuant to P.D.
No. 1084; Provided, however, that the rights and interest of the Construction and
Development Corporation of the Philippines pursuant to the aforesaid contract shall be
recognized and respected.

xxx xxx xxx

"Special land patent/patents shall be issued by the Secretary of Natural Resources in

favor of the Public Estates Authority without prejudice to the subsequent transfer to the
contractor or his assignees of such portion or portions of the land reclaimed or to be
reclaimed as provided for in the above-mentioned contract. On the basis of such patents,
the Land Registration Commission shall issue the corresponding certificates of title."
(Emphasis Ours)
Pursuant to the above provisions, PEA is mandated inter alia to reclaim land, including
foreshore and submerged areas, or to acquire reclaimed land. Likewise, PEA has the
power to sell any and all kinds of lands and other forms of real property owned and
managed by the government. Significantly, PEA is authorized to transfer to the
contractor or its assignees portion or portions of the land reclaimed or to be reclaimed.

It is a fundamental rule that if two or more laws govern the same subject, every effort to
reconcile and harmonize them must be taken. Interpretare et concordare legibus est
optimus interpretandi. Statutes must be so construed and harmonized with other
statutes as to form a uniform system of jurisprudence.[11] However, if several laws
cannot be harmonized, the earlier statute must yield to the later enactment. The later
law is the latest expression of the legislative will.[12] Therefore, it is PD 1084 and PD
1085 which apply to the issues in this case.

Moreover, the laws cited in our Decision are general laws which apply equally to all the
individuals or entities embraced by their provisions.[13] The provisions refer to public
lands in general.

Upon the other hand, PD 1084 and PD 1085 are special laws which relate to particular
economic activities, specific kinds of land and a particular group of persons.[14] Their
coverage is specific and limited. More specifically, these special laws apply to land
reclaimed from Manila Bay by private corporations.

If harmonization and giving effect to the provisions of both sets of laws is not possible,
the special law should be made to prevail over the general law, as it evinces the
legislative intent more clearly. The special law is a specific enactment of the legislature
which constitutes an exception to the general statute.[15]

Our Decision cites the constitutional provision banning private corporations from
acquiring any kind of alienable land of the public domain.[16]

Under the Constitution, lands of the public domain are classified into agricultural, forest
or timber, mineral lands, and natural parks.[17] Land reclaimed from the sea cannot fall
under any of the last three categories because it is neither forest or timber, mineral, nor
park land. It is, therefore, agricultural land.[18] Agricultural land of the public domain
may be alienated.[19] However, the Constitution states that private corporations may
not hold such alienable land except by lease. It follows that AMARI, being a private
corporation, cannot hold any reclaimed area. But let it be made clear that PD 1084
transfers the public agricultural land formed by reclamation to the "ownership and
administration" of PEA, a government owned corporation. The transfer is not to AMARI, a
private corporation, hence, the constitutional prohibition does not apply. Corollarily,
under PD 1085, PEA is empowered to subsequently transfer to the contractor portion or
portions of the land reclaimed or to be reclaimed.

Does the Constitution restrain PEA from effecting such transfer to a private corporation?
Under Article 421 of the Civil Code, all property of the State which is not of public
dominion is patrimonial. PEA does not exercise sovereign functions of government. It
handles business activities for the government. Thus, the property in its hands, not being
of public dominion, is held in a patrimonial capacity. PEA, therefore, may sell this
property to private corporations without violating the Constitution. It is relevant to state
that there is no constitutional obstacle to the sale of real estate held by government
owned corporations, like the National Development Corporation, the Philippine National
Railways, the National Power Corporation, etc. to private corporations. Similarly, why
should PEA, being a government owned corporation, be prohibited to sell its reclaimed
lands to private corporations?

I take exception to the view of the majority that after the enactment of the 1935
Constitution, Section 58 of Act 2874 continues to be applicable up to the present and
that the long established state policy is to retain for the government title and ownership
of government reclaimed land. This simply is an inaccurate statement of current
government policy. When a government decides to reclaim the land, such as the area
comprising and surrounding the Cultural Center Complex and other parts of Manila Bay,
it reserves title only to the roads, bridges, and spaces allotted for government buildings.
The rest is designed, as early as the drawing board stage, for sale and use as
commercial, industrial, entertainment or services-oriented ventures. The idea of selling
lots and earning money for the government is the motive why the reclamation was
planned and implemented in the first place.

May I point out that there are other planned or on-going reclamation projects in the
Philippines. The majority opinion does not only strike down the Joint Venture Agreement
(JVA) between AMARI and PEA but will also adversely affect or nullify all other
reclamation agreements in the country. I doubt if government financial institutions, like
the Development Bank of the Philippines, the Government Service Insurance System, the
Social Security System or other agencies, would risk a major portion of their funds in a
problem-filled and highly speculative venture, like reclamation of land still submerged
under the sea. Likewise, there certainly are no private individuals, like business tycoons
and similar entrepreneurs, who would undertake a major reclamation project without
using the corporate device to raise and disburse funds and to recover the amounts
expended with a certain margin of profits. And why should corporations part with their
money if there is no assurance of payment, such as a share in the land reclaimed or to
be reclaimed? It would be most unfair and a violation of procedural and substantive
rights[20] to encourage investors, both Filipino and foreign, to form corporations, build
infrastructures, spend money and efforts only to be told that the invitation to invest is
unconstitutional or illegal with absolutely no indication of how they could be
compensated for their work.

It has to be stressed that the petition does not actually assail the validity of the JVA
between PEA and AMARI. The petition mainly seeks to compel PEA to disclose all facts on
the then on-going negotiations with respondent AMARI with respect to the reclamation of
portions of Manila Bay. Petitioner relies on the Constitutional provision that the right of
the people to information on matters of public concern shall be recognized and that
access to papers pertaining to official transactions shall be afforded the citizen.[21] I
believe that PEA does not have to reveal what was going on from the very start and
during the negotiations with a private party. As long as the parties have the legal
capacity to enter into a valid contract over an appropriate subject matter, they do not
have to make public, especially to competitors, the initial bargaining, the give-and-take
arguments, the mutual concessions, the moving from one position to another, and other
preliminary steps leading to the drafting and execution of the contract. As in negotiations
leading to a treaty or international agreement, whether sovereign or commercial in
nature, a certain amount of secrecy is not only permissible but compelling.

At any rate, recent developments appear to have mooted this issue, and anything in the
Decision which apparently approves publicity during on-going negotiations without
pinpointing the stage where the right to information appears is obiter. The motions for
reconsideration all treat the JVA as a done thing, something already concrete, if not
finalized.

Indeed, it is hypothetical to identify exactly when the right to information begins and
what matters may be disclosed during negotiations for the reclamation of land from the
sea.

Unfortunately for private respondent, its name, "AMARI," happens to retain lingering
unpleasant connotations. The phrase "grandmother of all scams," arising from the
Senate investigation of the original contract, has not been completely erased from the
public mind. However, any suspicion of anything corrupt or improper during the initial
negotiations which led to the award of the reclamation to AMARI are completely
irrelevant to this petition. It bears stressing that the Decision and this Dissenting Opinion
center exclusively on questions of constitutionality and legality earlier discussed.
To recapitulate, it is my opinion that there is nothing in the Constitution or applicable
statutes which impedes the exercise by PEA of its right to sell or otherwise dispose of its
reclaimed land to private corporations, especially where, as here, the purpose is to
compensate respondent AMARI, the corporate developer, for its expenses incurred in
reclaiming the subject areas. Pursuant to PD 1084 and PD 1085, PEA can transfer to the
contractor, such as AMARI, such portion or portions of the land reclaimed or to be
reclaimed.

WHEREFORE, I vote to GRANT the motions for reconsideration and to DISMISS the
petition for lack of merit.

--------------------------------------------------------------------------------
[1] Hughes, The Supreme Court of the United States, p. 68; cited in Sinco, Philippine
Political Law, Eleventh Edition, 326.

[2] Sections 1, 3 and 6, Article XII; Section 9, Article II, Constitution.

[3] Cario vs. Insular Government, 41 Phil. 935 (1909).

[4] Article 420, Civil Code.

[5] Id.

[6] Article 421, id.

[7] Article 422, id.

[8] Pp. 27-28.

[9] Creating the Public Estate Authority, defining its powers and functions, providing
funds therefor and for other purposes.

[10] Conveying the land reclaimed in the foreshore and offshore of the Manila Bay (The
Manila-Cavite Coastal Road Project) as property of the Public Estates Authority as well as
rights and interest with assumption of obligations in the reclamation contract covering
areas of the Manila Bay between the Republic of the Philippines and the Construction and
Development Corporation of the Philippines.

[11] Valera vs. Tuazon, 80 Phil. 823 (1948).

[12] Eraa vs. Vergel de Dios, 85 Phil. 17 (1947); City of Naga vs. Agna, 71 SCRA 176
(1976).

[13] U.S. vs. Serapio, 23 Phil. 584 (1912); Villegas vs. Subido, 41 SCRA 190 (1971);
Bagatsing vs. Ramirez, 74 SCRA 306 (1976).

[14]14 U.S. vs. Serapio, supra; Valera vs. Tuazon, supra.

[15] Licauco & Co. vs. Apostol, 44 Phil. 138 (1922); De Jesus vs. People, 120 SCRA 760
(1983).

[16] Section 3, Article XII, Constitution.

[17] Id.

[18] Krivenko vs. Register of Deeds, 79 Phil, 461 (1947).

[19] Section 3, Article XII, Constitution.

[20]20 Section 1, Article III, id. on deprivation of property without due process of law,
Section 9 on eminent domain is also infringed.

[21] Section 7, Article III, id.

SECOND DIVISION
[ G.R. No. 132524, December 29, 1998 ]
FEDERICO C. SUNTAY, PETITIONER, VS. ISABEL COJUANGCO-SUNTAY* AND HON.
GREGORIO S. SAMPAGA, PRESIDING JUDGE, BRANCH 78, REGIONAL TRIAL COURT,
MALOLOS, BULACAN, RESPONDENTS.

DECISION

MARTINEZ, J.:

Which should prevail between the ration decidendi and the fallo of a decision is the
primary issue in this petition for certiorari under Rule 65 filed by petitioner Federico C.
Suntay who opposes respondent Isabels petition for appointment as administratrix of
her grandmothers estate by virtue of her right of representation.

The suit stemmed from the following:

On July 9, 1958, Emilio Aguinaldo Suntay (son of petitioner Federico Suntay) and Isabel
Cojuangco-Suntay were married in the Portuguese Colony of Macao. Out of this marriage,
three children were born namely: Margarita Guadalupe, Isabel Aguinaldo and Emilio
Aguinaldo all surnamed Cojuangco Suntay. After 4 years, the marriage soured so that in
1962, Isabel Cojuanco-Suntay filed a criminal case[1] against her husband Emilio
Aguinaldo Suntay. In retaliation, Emilio Aguinaldo filed before the then Court of First
Instance (CFI)[2] a complaint for legal separation against his wife, charging her, among
others, with infidelity and praying for the custody and care of their children who were
living with their mother.[3] The suit was docketed as civil case number Q-7180.

On October 3, 1967, the trial court rendered a decision the dispositive portion which
reads:

"WHEREFORE, the marriage celebrated between Emilio Aguinaldo Suntay and Isabel
Cojuangco-Suntay on July 9, 1958 is hereby declared null and void and of no effect as
between the parties. It being admitted by the parties and shown by the records that the
question of the case and custody of the three children have been the subject of another
case between the same parties in another branch of this Court in Special Proceeding No.
6428, the same cannot be litigated in this case.

"With regard to counterclaim, in view of the manifestation of counsel that the third party
defendants are willing to pay P50,000.00 for damages and that defendant is willing to
accept the offer instead of her original demand for P130,000.00, the defendant is
awarded the sum of P50,000.00 as her counterclaim and to pay attorneys fees in the
amount of P5,000.00.

"SO ORDERED.[4] (Emphasis supplied)

As basis thereof, the CFI said:

"From February 1965 thru December 1965 plaintiff was confined in the Veterans
Memorial Hospital. Although at the time of the trial of parricide case (September 8, 1967)
the patient was already out of the hospital he continued to be under observation and
treatment.

"It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration
classified as schizophernia (sic) had made themselves manifest even as early as 1955;
that the disease worsened with time, until 1965 when he was actually placed under
expert neuro-psychiatrist (sic) treatment; that even if the subject has shown marked
progress, the remains bereft of adequate understanding of right and wrong.

"There is no controversy that the marriage between the parties was effected on July 9,
1958, years after plaintiffs mental illness had set in. This fact would justify a declaration
of nullity of the marriage under Article 85 of the Civil Code which provides:

"Art. 95. (sic) A marriage may be annulled for nay of the following causes after (sic)
existing at the time of the marriage:

"xxx xxx xxx

"(3) That either party was of unsound mind, unless such party, after coming to reason,
freely cohabited with the other as husband or wife.

"There is a dearth of proof at the time of the marriage defendant knew about the mental
condition of the plaintiff; and there is proof that plaintiff continues to be without sound
reason. The charges in this very complaint add emphasis to the findings of the neuro-
psychiatrist handling the patient, that plaintiff really lives more in fancy that in reality, a
strong indication of schizophernia (sic).[5] (emphasis supplied)
On June 1, 1979, Emilio Aguinaldo Suntay predeceased his mother, the decedent Cristina
Aguinaldo-Suntay. The latter is respondent Isabels paternal grandmother. The decedent
died on June 4, 1990 without leaving a will.[6]

Five years later or on October 26 1995, respondent Isabel Aguinaldo Cojuangco Suntay
filed before the Regional Trial Court (RTC)[7] a petition for issuance in her favor of Letters
of Administration of the Intestate Estate of her late grandmother Cristina Aguinaldo
Suntay which case was docketed as Special Proceeding Case No. 117-M-95. In her
petition, she alleged among others, that she is one of the legitimate grandchildren of the
decedent and prayed that she be appointed as administratrix of the estate.[8]

On December 15, 1995, petitioner filed an Opposition claiming that he is the surviving
spouse of the decedent, that he has been managing the conjugal properties even while
the decedent has been alive and is better situated to protect the integrity of the estate
than the petitioner, that petitioner and her family have been alienated from the
decedent and the Oppositor for more than thirty (30) years and thus, prayed that Letters
of Administration be issued instead to him.[9]

On September 22, 1997 or almost two years after filing an opposition, petitioner moved
to dismiss the special proceeding case alleging in the main that respondent Isabel should
not be appointed as administratrix of the decedents estate. In support thereof,
petitioner argues that under Article 992 of the Civil Code an illegitimate child has no
right to succeed by right of representation the legitimate relatives of her father or
mother. Emilio Aguinaldo Suntay, respondent Isabels father predeceased his mother, the
late Cristina Aguinaldo Suntay and thus, opened succession by representation. Petitioner
contends that as a consequence of the declaration by the then CFI of Rizal that the
marriage of the respondent Isabels parents is "null and void," the latter is an illegitimate
child, and has no right nor interest in the estate of her paternal grandmother - the
decedent.[10] On October 16, 1997, the trial court issued the assailed order denying
petitioners Motion to Dismiss.[11] When his motion for reconsideration was denied by
the trial court in an order dated January 9, 1998,[12] petitioner, as mentioned above filed
this petition.

Petitioner imputes grave abuse of discretion to respondent court in denying his motion to
dismiss as well as his motion for reconsideration on the grounds that: (a) a motion to
dismiss is appropriate in a special proceeding for the settlement of estate of a deceased
person; (b) the motion to dismiss was timely filed; (c) the dispositive portion of the
decision declaring the marriage of respondent Isabels parents "null and void" must be
upheld; and (d) said decision had long become final and had, in fact, been executed.
On the other hand, respondent Isabel asserts that petitioners motion to dismiss was late
having been filed after the opposition was already filed in court, the counterpart of an
answer in an ordinary civil action and that petitioner in his opposition likewise failed to
specifically deny respondent Isabels allegation that she is a legitimate child of Emilio
Aguinaldo Suntay, the decedents son. She further contends that petitioner proceeds
from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous
premise that there is a conflict between the body of the decision and its dispositive
portion because in an action for annulment of a marriage, the court either sustains the
validity of marriage or nullifies it. It does not, after hearing a marriage "voidable"
otherwise, the court will fail to decide and lastly, that the status of marriages under
Article 85 of the Civil Code before they are annulled is "voidable."

The petition must fail.

Certiorari as a special civil action can be availed of only if there is concurrence of the
essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions
has acted without or in excess of jurisdiction or with grave abuse of discretion amounting
to lack or in excess or jurisdiction, and (b) there is no appeal, nor any plain, speedy and
adequate remedy in the ordinary course of law for the purpose of annulling or modifying
the proceeding.[13] There must be a capricious, arbitrary and whimsical exercise of
power for it to prosper.[14]

A reading of the assailed order, however, shows that the respondent court did not abuse
its discretion in denying petitioners motion to dismiss, pertinent portions of which are
quoted hereunder. To with:

"The arguments of both parties judiciously and objectively assessed and the pertinent
laws applied, the Court finds that a motion to dismiss at this juncture is inappropriate
considering the peculiar nature of this special proceeding as distinguished from an
ordinary civil action. At the outset, this proceeding was not adversarial in nature and the
petitioner was not called upon to assert a cause of action against a particular defendant.
Furthermore, the State has a vital interest in the maintenance of the proceedings, not
only because of the taxes due it, but also because if no heirs qualify, the State shall
acquire the estate by escheat.

"xxx xxx xxx

"The court rules, for the purpose of establishing the personality of the petitioner to file
ad maintain this special proceedings, that in the case at bench, the body of the decision
determines the nature of the action which is for annulment, not declaration of nullity.

"The oppositors contention that the fallo of the questioned decision (Annex "A" - Motion)
prevails over the body thereof is not of a final decision is definite, clear and unequivocal
and can be wholly given effect without need of interpretation or construction.

"Where there is ambiguity or uncertainty, the opinion or body of the decision may be
referred to for purposes of construing the judgement" (78 SCRA 541 citing Morelos v. Go
Chin Ling; and Heirs of Juan Presto v. Galang). The reason is that the dispositive portion
must find support from the decisions ratio decidendi.

"Per decision of the Court of First Instance Branch IX of Quezon City, marked as Annex
"A" of oppositors motion, the marriage of Emilio Aguinaldo Suntay and Isabel Cojuangco-
Suntay was annulled on the basis of Art. 85 par. 3 of the Civil Code which refers to
marriages which are considered voidable. Petitioner being conceived and born of a
voidable marriage before the decree of annulment, she is considered legitimate (Art. 89,
par. 2, Civil Code of the Phils.)."[15]
The trial court correctly ruled that "a motion to dismiss at this juncture is inappropriate."
The 1997 Rules of Civil Procedure governs the procedure to be observed in actions, civil
or criminal and special proceedings."[16] The Rules do not only apply to election cases,
land registration, cadastral, naturalization and insolvency proceedings, and other cases
not therein provided for.
Special proceedings being one of the actions under the coverage of the Rules on Civil
Procedure, a motion to dismiss filed thereunder would fall under Section 1, Rule 16
thereof. Said rule provides that the motion to dismiss may be filed "within the time for
but before filing the answer to the complaint." Clearly, the motion should have been filed
on or before the filing of petitioners opposition.[17] which is the counterpart of an
answer in ordinary civil actions.

Not only was petitioners motion to dismiss filed out of time, it was filed almost two years
after respondent Isabel was already through with the presentation of her witnesses and
evidence and petitioner had presented two witnesses. The filing of the motion to dismiss
is not only improper but also dilatory.

The respondent court, far from deviating or straying off course from established
jurisprudence on this matter, as petitioner asserts, had in fact faithfully observed the law
and legal precedents in this case. In fact, the alleged conflict between the body of the
decision and the dispositive portion thereof which created the ambiguity or uncertainty
in the decision of the CFI of Rizal is reconcilable. The legal basis for setting aside the
marriage of respondent Isabels parents is clear under paragraph 3, Article 85 of the New
Civil Code, the law in force prior to the enactment of the Family Code.

Petitioner, however, strongly insists that the dispositive portion of the CFI decision has
categorically declared that the marriage of respondent Isabels parents is "null and void"
and that the legal effect of such declaration is that the marriage from its inception is void
and the children born out of said marriage is illegitimate. Such argument cannot be
sustained. Articles 80, 81, 82 and 83[18] of the New Civil Code classify what marriages
are void while Article 85 enumerates the causes for which a marriage may be annulled.
[19]

The fundamental distinction between void and voidable marriages is that void marriage
is deemed never to have taken place at all. The effects of void marriages, with respect to
property relations of the spouses are provided for under Article 144 of the Civil Code.
Children born of such marriages who are called natural children by legal fiction have the
same status, rights and obligations as acknowledged natural children under Article
89[20] irrespective of whether or not the parties to the void marriage are in good faith or
in bad faith.

On the other hand, a voidable marriage, is considered valid and produces all its civil
effects, until it is set aside by final judgment of a competent court in an action for
annulment. Juridically, the annulment of a marriage dissolves the special contract as if it
had never been entered into but the law makes express provisions to prevent the effects
of the marriage from being totally wiped out. The status of children born in voidable
marriages is governed by the second paragraph of Article 89 which provides that:

"Children conceived of voidable marriages before the decree of annulment shall be

considered legitimate; and children conceived thereafter shall have the same status,
rights and obligations as acknowledged natural children, and are also called natural
children by legal fiction."[21] (Emphasis supplied)
Stated otherwise, the annulment of "the marriage by the court abolishes the legal
character of the society formed by the putative spouses, but it cannot destroy the
juridical consequences which the marital union produced during its continuance."[22]

Indeed, the terms "annul" and "null and void" have different legal connotations and
implications. Annul means to reduce to nothing; annihilate; obliterate; to make void or of
no effect; to nullify; to abolish; to do away with[23] whereas null and void is something
that does not exist from the beginning. A marriage that is annulled presupposes that it
subsists but later ceases to have legal effect when it is terminated through a court
action. But in nullifying a marriage, the court simply declares a status condition which
already exists from the very beginning.
There is likewise no merit in petitioners argument that it is the dispositive portion of the
decision which must control as to whether or not the marriage of respondent Isabels
parents was void or voidable. Such argument springs from a miscomprehension of the
judgment of the Civil Case No. Q-7180 and the erroneous premise that there is a conflict
between the body of the decision and its dispositive portion.

Parenthetically, it is an elementary principle of procedure that the resolution of the court

in a given issue as embodied in the dispositive part of a decision or order is the
controlling factor as to settlement of rights of the parties and the questions presented,
notwithstanding statement in the body of the decision or order which may be somewhat
confusing,[24] the same is not without qualification. The foregoing rule holds true only
when the dispositive part of a final decision or order is definite, clear and unequivocal
and can be wholly given effect without need of interpretation or construction - which
usually is "the case where the order or decision in question is that of a court not of
record which is not constitutionally required to state the facts and the law on which the
judgment is based."[25]

Assuming that a doubt or uncertainty exists between the dispositive portion and the
body of the decision, effort must be made to harmonize the whole body of the decision in
order to give effect to the intention, purpose and judgment of the court. In Republic v.
delos Angeles[26] the Court said:

"Additionally, Article 10 of the Civil Code states that [i]n case of doubt in the
interpretation or application of laws, it is presumed that the lawmaking body intended
right and justice to prevail. This mandate of law, obviously cannot be any less binding
upon the courts in relation to its judgments.

"x x x The judgment must be read in its entirety, and must be construed as a whole so as
to bring all of its parts into harmony as far as this can be done by fair and reasonable
interpretation and so as to give effect to every word and part if possible, and to
effectuate the intention and purpose of the Court, consistent with the provisions of the
organic law. (49 C.J.S., pp. 863-864" [Emphasis supplied]
Thus, a reading of the pertinent portions of the decision of the CFI of Rizal quoted earlier
shows that the marriage is voidable:

"It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration
classified as schizophernia (sic) had made themselves manifest even as early as 1955;
that the disease worsened with time, until 1965 when he was actually placed under
expert neuro-psychiatrict (sic) treatment; that even if the subject has shown marked
progress, he remains bereft of adequate understanding of right and wrong.

"There is no controversy that the marriage between the parties was effected on July 9,
1958, years after plaintiffs mental illness had set in. This fact would justify a declaration
of nullity of the marriage under Article 85 of the Civil Code which provides:

"Art. 95 (sic) A marriage may be annulled for any of the following causes, existing at the
time of the marriage:

xxx xxx xxx

"(3) That either party was of unsound mind, unless such party, after coming to reason,
freely cohabited with the other as husband and wife;

xxx xxx xxx

"There is a dearth of proof at the time of the marriage defendant knew about the mental
condition of plaintiff; and there is proof that plaintiff continues to be without sound
reason. The charges in this very complaint add emphasis to the finding of the neuro-
psychiatrist handling the patient, that plaintiff really lives more in fancy than in reality, a
strong indication of schizophernia (sic)."[27]
Inevitably, the decision of the CFI of Rizal declared null and void the marriage of
respondent Isabels parents based on paragraph 3, Article 85 of the New Civil Code. The
legal consequences as to the rights of the children are therefore governed by the first
clause of the second paragraph of Article 89. A contrary interpretation would be
anathema to the rule just above-mentioned. Based on said provision the children of
Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay who were conceived and born
prior to the decree of the trial court setting aside their marriage on October 3, 1967 are
considered legitimate. For purposes of seeking appointment as estate administratrix, the
legitimate grandchildren, including respondent Isabel, may invoke their successional
right of representation in the estate of their grandmother Cirstina Aguinaldo Suntay after
their father, Emilio Aguinaldo Suntay, had predeceased their grandmother. This is,
however, without prejudice to a determination by the courts of whether Letters of
Administration may be granted to her. Neither do the Court adjudged herein the
successional rights of the personalities involved over the decedents estate.

It would not therefore be amiss to reiterate at this point what the Court, speaking
through Chief Justice Ruiz Castro, emphasized to "all magistrates of all levels of the
judicial hierarchy that extreme degree of care should be exercised in the formulation of
the dispositive portion of a decision, because it is this portion that is to be executed once
the decision becomes final. The adjudication of the rights and obligations of thoe parties,
and the dispositions made as well as the directions and instructions given by the court in
the premises in conformity with the body of the decision, must all be spelled out clearly,
distinctly and unequivocally leaving absolutely no room for dispute, debate or
interpretation.[28]

WHEREFORE, finding no grave abuse of discretion, the instant petition is DISMISSED.

SO ORDERED.

Bellosillo, (Chairman), Puno, and Mendoza, JJ., concur.

--------------------------------------------------------------------------------
* Should read Isabel Aguinaldo Cojuangco Suntay.

[1] Allegedly for parricide.

[2] Court of First Instance (CFI) of Rizal, Branch 9, Quezon City.

[3] Decision dated October 3, 1967 of the CFI of Rizal penned by Judge Lourdes P. San
Diego, p. 3; Annex "A" of Petition; Rollo, pp. 37-41.

[4] Ibid., pp. 3-5; Rollo, pp. 39-41.

[5] Ibid.

[6] Annex "I" of the Petition; Rollo, pp. 111-119.

[7] Malolos, Bulacan, Branch 78.

[8] Annex "I", Petition.

[9] Annex "J", Petition; Rollo, pp. 116-118.

[10] Motion to Dismiss, Annex "A" of Petition; Rollo, pp. 31-36.

[11] Order of the Regional Trial Court (RTC) of Malolos Bulacan, Branch 78; Annex "D" of
the Petition; Rollo, pp. 60-61.

[12] Order of the RTC of Malolos, Bulacan, Branch 78 - Annex "H" of the Petition; Rollo, p.
110.
[13] Sempio v. Court of Appeals, 263 SCRA 617 (1996).

[14] Zarate, Jr., v. Olegario, 263 SCRA 1 (1996).

[15] Annex "D", Petition; Rollo, pp. 60-61.

[16] Rules 1&3, 1997 Rules of Civil Procedure.

[17] February 7, 1996.

[18] Article 80. The following marriages shall be void from the beginning:

(1) Those contracted under the ages of sixteen and fourteen years by male and female
respectively, even with the consent of the parents;

(2) Those solemnized by any person not legally authorized to perform marriages;

(3) Those solemnized without marriage license, save marriages of exceptional

character;

(4) Bigamous or polygamous marriages not falling under Article 83, number 2;

(5) Incestuous marriages mentioned in Article 81;

(6) Those where one or both contracting parties have been found guilty of killing of the
spouse of either of them;

(7) Those between stepbrothers and stepsisters and other marriages specified in
Article 82. (n)

Article 81. Marriage between the following are incestuous and void from their
performance, whether the relationship between the parties be legitimate or illegitimate;

(1) Between ascendants and descendants of any degree;

(2) Between brothers and sisters, whether in the full or half blood;

(3) Between collateral relatives by blood within the fourth degree. (28a)

Article 82. The following marriages shall also be void from the beginning:

(1) Between stepfathers and stepdaughters, and stepmothers and stepsons;

(2) Between adopting father or mother and the adopted, between the latter and the
surviving spouse of the former, and between the former and the surviving spouse of the
latter.

(3) Between the legitimate children of the adopter and the adopted. (28a)

Article 83. Any marriage subsequently contracted by any person during the lifetime of
the first spouses of such person with any person other than such first spouse shall be
illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee, though he
has been absent for less than seven years, is generally considered as dead and believed
to be so by the spouse present at the time of contracting such subsequent marriage, or if
the absentee is presumed dead according to Articles 390 and 391. The marriage
contracted shall be valid in any of the three cases until declared null and void by a
competent court.(29a)

Article 84. No marriage license shall be issued to a widow till after three hundred days
following the death of the husband, unless in the meantime she has given birth to a
child. (n)

[19] Article 85 of the New Civil Code reads:

"A marriage may be annulled for any of the following causes, existing at the time of the
marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was
between the ages of sixteen and twenty years, if male, or between the ages of fourteen
to eighteen years, if female, and the marriage was solemnized without the consent of the
parent, guardian or person having authority over the party, unless after attaining the
ages of twenty or eighteen years, as the case may be, such party freely cohabited with
the other and both lived together as husband and wife;

(2) In a subsequent marriage under Article 83, Number 2, that the former husband or
wife believed to be dead was in fact living and the marriage with such former husband or
wife was then in force;

(3) That either party was of unsound mind, unless such party, after coming to reason,
freely cohabited with the other husband or wife;

(4) That the consent of either party was obtained by force or intimidation, unless the
violence or threat having disappeared, such party, afterwards freely cohabited with the
other as her husband or his wife, as the case may be;

(5) That the consent of either party was obtained by force or intimidation, unless the
violence or threat having disappeared, such party, afterwards freely cohabited with the
other as her husband or his wife, as the case may be;

(6) That either party was, at the time of marriage, physically incapable of entering into
the married state, and such incapacity continues, and appear to be incurable.

[20] Article 89. Children conceived or born of marriages which are void from the
beginning shall have the same status, rights and obligations as acknowledged natural
children, and are called natural children by legal fiction.

xxx xxx xxx.

[21] See Tolentino, New Civil Code, Vol. I, pp. 244-245.

[22] Sy Loc Lieng, et al., v. Sy Quia, et al., 16 Phil. 137 (1910).

[23] Nuguid v. Nuguid, 123 Phil. 1305 (1966).

[24] Magdalena Estate, Inc. v. Calauag, 11 SCRA 333 (1964).

[25] Board of Liquidators v. Ricma Trading Corporation, 29 SCRA 397 (1969).

[26] 41 SCRA 422 (1971).

[27] Decision, Annex "A", Petition; Rollo, pp. 37-41.

[28] Padua v. Robles, 66 SCRA 485 (1975).

EN BANC
[ G.R. No. 152375, December 13, 2011 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS SANDIGANBAYAN (FOURTH DIVISION),
JOSE L. AFRICA (SUBSTITUTED BY HIS HEIRS), MANUEL H. NIETO, JR., FERDINAND E.
MARCOS (SUBSTITUTED BY HIS HEIRS), IMELDA R. MARCOS, FERDINAND R. MARCOS, JR.,
JUAN PONCE ENRILE, AND POTENCIANO ILUSORIO (SUBSTITUTED BY HIS HEIRS),
RESPONDENTS.

DECISION

BRION, J.:

Before us is the petition for certiorari[1] filed by the Republic of the Philippines
(petitioner) to set aside the February 7, 2002 resolution (2002 resolution)[2] of the
Sandiganbayan[3] denying the petitioners Motion to Admit Supplemental Offer of
Evidence (Re: Deposition of Maurice V. Bane) (3rd motion).

THE ANTECEDENTS

On July 22, 1987, the petitioner Republic of the Philippines, through the Presidential
Commission on Good Government (PCGG), filed a complaint (docketed as Civil Case No.
0009) against Jose L. Africa, Manuel H. Nieto, Jr., Ferdinand E. Marcos, Imelda R. Marcos,
Ferdinand R. Marcos, Jr., Juan Ponce Enrile, and Potenciano Ilusorio (collectively, the
respondents) for reconveyance, reversion, accounting, restitution, and damages before
the Sandiganbayan. The petitioner alleged, inter alia, that the respondents illegally
manipulated the purchase of the major shareholdings of Cable and Wireless Limited in
Eastern Telecommunications Philippines, Inc. (ETPI), which shareholdings respondents
Jose Africa and Manuel Nieto, Jr. held for themselves and, through their holdings and the
corporations they organized, beneficially for respondents Ferdinand E. Marcos and Imelda
R. Marcos.[4]

Civil Case No. 0009 is the main case subject of the present petition. Victor Africa (Africa),
son of the late Jose L. Africa, was not impleaded in and so is plainly not a party to Civil
Case No. 0009.[5]

Civil Case No. 0009 spawned numerous incidental cases,[6] among them, Civil Case No.
0130.[7] The present respondents were not made parties either in Civil Case No. 0130.

I. Civil Case No. 0130

In the August 7, 1991 PCGG-conducted ETPI stockholders meeting, a PCGG-controlled

board of directors was elected. Later, the registered ETPI stockholders convened a
special stockholders meeting wherein another set of board of directors was elected. As a
result, two sets of ETPI board and officers were elected.[8]

Thereafter, Africa, as an ETPI stockholder, filed a petition for certiorari, with prayer for a
temporary restraining order/preliminary injunction with the Sandiganbayan (docketed as
Civil Case No. 0130), seeking to nullify the August 5, 1991 and August 9, 1991 Orders of
the PCGG. These Orders directed Africa:

[T]o account for his sequestered shares in ETPI and to cease and desist from exercising
voting rights on the sequestered shares in the special stockholders meeting to be held
on August 12, 1991, from representing himself as a director, officer, employee or agent
of ETPI, and from participating, directly or indirectly[,] in the management of ETPI.[9]

During the pendency of Africas petition, Civil Case No. 0130, Africa filed a motion with
the Sandiganbayan, alleging that since January 29, 1988 the PCGG had been illegally
exercising the rights of stockholders of ETPI,[10] especially in the election of the
members of the board of directors. Africa prayed for the issuance of an order for the
calling and holding of [ETPI] annual stockholders meeting for 1992 under the [c]ourts
control and supervision and prescribed guidelines.[11]

In its November 13, 1992 resolution, the Sandiganbayan favored Africas motion in this
wise:

WHEREFORE, it is ordered that an annual stockholders meeting of the [ETPI], for 1992 be
held on Friday, November 27, 1992, at 2:00 oclock in the afternoon, at the ETPI Board
Room, Telecoms Plaza, 7th Floor, 316 Gil J. Puyat Avenue, Makati, Metro Manila. x x x The
stockholders meeting shall be conducted under the supervision and control of this Court,
through Mr. Justice Sabino R. de Leon, Jr. [O]nly the registered owners, their duly
authorized representatives or their proxies may vote their corresponding shares.

The following minimum safeguards must be set in place and carefully maintained until
final judicial resolution of the question of whether or not the sequestered shares of stock
(or in a proper case the underlying assets of the corporation concerned) constitute ill-
gotten wealth[.][12]

The PCGG assailed this resolution before this Court via a petition for certiorari docketed
as G.R. No. 107789[13] (PCGGs petition), imputing grave abuse of discretion on the
Sandiganbayan for holding, inter alia, that the registered stockholders of ETPI had the
right to vote.[14] In our November 26, 1992 Resolution, we enjoined the Sandiganbayan
from implementing its assailed resolution.

In the meantime, in an April 12, 1993 resolution, the Sandiganbayan ordered the
consolidation of Civil Case No. 0130, among others, with Civil Case No. 0009, with the
latter as the main case and the former merely an incident.[15]

During the pendency of PCGGs petition (G.R. No. 107789), the PCGG filed with this Court
a Very Urgent Petition for Authority to Hold Special Stockholders Meeting for [the] Sole
Purpose of Increasing [ETPIs] Authorized Capital Stock (Urgent Petition). In our May 7,
1996 Resolution, we referred this Urgent Petition to the Sandiganbayan for reception of
evidence and immediate resolution.[16] The Sandiganbayan included the Urgent Petition
in Civil Case No. 0130.[17]

In the proceedings to resolve the Urgent Petition, the testimony of Mr. Maurice V. Bane
(former director and treasurer-in-trust of ETPI) was taken at the petitioners instance
and after serving notice of the deposition-taking on the respondents[18] on October 23
and 24, 1996 by way of deposition upon oral examination (Bane deposition) before
Consul General Ernesto Castro of the Philippine Embassy in London, England.

Invoking Section 1, Rule 24 (of the old Rules of Court), purportedly allowing the petitioner
to depose Bane without leave of court, i.e., as a matter of right after the defendants
have filed their answer, the notice stated that [t]he purpose of the deposition is for
[Bane] to identify and testify on the facts set forth in his affidavit[19] x x x so as to prove
the ownership issue in favor of [the petitioner] and/or establish the prima facie factual
foundation for sequestration of [ETPIs] Class A stock in support of the [Urgent
Petition].[20] The notice also states that the petitioner shall use the Bane deposition in
evidence in the main case of Civil Case No. 0009.[21] On the scheduled deposition
date, only Africa was present and he cross-examined Bane.

On December 13, 1996, the Sandiganbayan resolved the Urgent Petition by granting
authority to the PCGG (i) to cause the holding of a special stockholders meeting of ETPI
for the sole purpose of increasing ETPIs authorized capital stock and (ii) to vote
therein the sequestered Class A shares of stock.[22] Thus, a special stockholders
meeting was held, as previously scheduled, on March 17, 1997 and the increase in ETPIs
authorized capital stock was unanimously approved.[23] From this ruling, Africa went
to this Court via a petition for certiorari[24] docketed as G.R. No. 147214 (Africas
petition).
We jointly resolved the PCGGs and Africas petitions, and ruled:

This Court notes that, like in Africas motion to hold a stockholders meeting (to elect a
board of directors), the Sandiganbayan, in the PCGGs petition to hold a stockholders
meeting (to amend the articles of incorporation to increase the authorized capital stock),
again failed to apply the two-tiered test. On such determination hinges the validity of the
votes cast by the PCGG in the stockholders meeting of March 17, 1997. This lapse by the
Sandiganbayan leaves this Court with no other choice but to remand these questions to
it for proper determination.

xxxx

WHEREFORE, this Court Resolved to REFER the petitions at bar to the Sandiganbayan for
reception of evidence to determine whether there is a prima facie evidence showing that
the sequestered shares in question are ill-gotten and there is an imminent danger of
dissipation to entitle the PCGG to vote them in a stockholders meeting to elect the ETPI
Board of Directors and to amend the ETPI Articles of Incorporation for the sole purpose of
increasing the authorized capital stock of ETPI.

The Sandiganbayan shall render a decision thereon within sixty (60) days from receipt of
this Resolution and in conformity herewith.

II. Civil Case No. 0009

Although Civil Case No. 0009 was filed on July 22, 1987, it was only on November 29,
1996 and March 17, 1997 that the first pre-trial conference was scheduled and
concluded.[25]

In its Pre-Trial Brief[26] dated August 30, 1996, the petitioner offered to present the
following witnesses:

WITNESSES TO BE PRESENTED AND A BRIEF DESCRIPTION OF THEIR TESTIMONIES

(1) Maurice V. Bane representative of Cable and Wireless Limited (C & W) at the time
ETPI was organized.

xxxx

(2) Mr. Manuel H. Nieto x x x

(3) Ms. Evelyn Singson x x x

(4) Mr. Severino P. Buan, Jr. x x x

(5) Mr. Apolinario K. Medina - x x x

(6) Mr. Potenciano A. Roque x x x

(7) Caesar Parlade - x x x

IIa. Motion to Admit the Bane Deposition

At the trial of Civil Case No. 0009, the petitioner filed a Motion[27] (1st motion), stating
that
In the hearings of the incidents of [Civil Case No. 0009], i.e., Civil Case Nos. 0048, 0050,
0130, 0146[28] the following witnesses were presented therein:

a. Cesar O.V. Parlade

b. Maurice Bane
c. Evelyn Singson
d. Leonorio Martinez
e. Ricardo Castro; and
f. Rolando Gapud

[The petitioner] wishes to adopt in [Civil Case No. 0009] their testimonies and the
documentary exhibits presented and identified by them, since their testimonies and the
said documentary exhibits are very relevant to prove the case of the [petitioner] in [Civil
Case No. 0009].

The adverse parties in the aforementioned incidents had the opportunity to cross-
examine them.

The respondents filed their respective Oppositions to the 1st motion;[29] in turn, the
petitioner filed a Common Reply[30] to these Oppositions.

On April 1, 1998, the Sandiganbayan[31] promulgated a resolution[32] (1998 resolution)

denying the petitioners 1st motion, as follows:

Wherefore, the [petitioners] Motion x x x is

partly denied insofar as [the petitioner] prays therein to adopt the testimonies on oral
deposition of Maurice V. Bane and Rolando Gapud as part of its evidence in Civil Case No.
0009 for the reason that said deponents according to the [petitioner] are not available
for cross-examination in this Court by the [respondents]. (emphasis added)

partly Granted, in the interest of speedy disposition of this long pending case, insofar as
plaintiff prays therein to adopt certain/particular testimonies of Cesar O. Parlade, Evelyn
Singson, Leoncio Martinez, and Ricardo Castro and documentary exhibits which said
witnesses have identified in incident Civil Case Nos. xxx 0130 xxx, subject to the
following conditions :

xxx

xxx

That the said witnesses be presented in this Court so that they can be cross-examined on
their particular testimonies in incident Civil Cases xxx [by the respondents].

IIb. Urgent Motion and/or Request for Judicial Notice

The petitioner did not in any way question the 1998 resolution, and instead made its
Formal Offer of Evidence on December 14, 1999.[33] Significantly, the Bane deposition
was not included as part of its offered exhibits. Rectifying the omission, the petitioner
filed an Urgent Motion and/or Request for Judicial Notice[34] (2nd motion) dated
February 21, 2000, with the alternative prayer that:
An order forthwith be issued re-opening the plaintiffs case and setting the same for trial
any day in April 2000 for the sole purpose of introducing additional evidence and limited
only to the marking and offering of the [Bane deposition] which already forms part of the
records and used in Civil Case No. 0130 x x x;

In the alternative, x x x the [Sandiganbayan] to take judicial notice of the facts

established by the [Bane deposition], together with the marked exhibits appended
thereto. [emphasis ours]

On August 21, 2000, the Sandiganbayan promulgated a resolution[35] (2000 resolution)

denying the petitioners 2nd motion:

Judicial notice is found under Rule 129 which is titled What Need Not Be Proved.
Apparently, this provision refers to the Courts duty to consider admissions made by the
parties in the pleadings, or in the course of the trial or other proceedings in resolving
cases before it. The duty of the Court is mandatory and in those cases where it is
discretionary, the initiative is upon the Court. Such being the case, the Court finds the
Urgent Motion and/or Request for Judicial Notice as something which need not be acted
upon as the same is considered redundant.

On the matter of the [Bane deposition], [its] admission is done through the ordinary
formal offer of exhibits wherein the defendant is given ample opportunity to raise
objection on grounds provided by law. Definitely, it is not under Article (sic) 129 on
judicial notice. [Emphasis ours]

On November 6, 2000 and on several dates thereafter, the respondents separately filed
their respective demurrers to evidence.[36] On the other hand, the petitioner moved for
the reconsideration of the 2000 resolution, but was rebuffed by the Sandiganbayan in its
April 3, 2001 resolution[37] (2001 resolution).

IIc. Motion to Admit Supplemental Offer of

Evidence (Re: Deposition of Maurice Bane)

On November 16, 2001, the petitioner filed its 3rd Motion, seeking once more the
admission of the Bane deposition.[38] On February 7, 2002 (pending resolution of the
respondents demurrers to evidence),[39] the Sandiganbayan promulgated the assailed
2002 resolution,[40] denying the petitioners 3rd motion. The Sandiganbayan ruled:

But in the courts view, it is not really a question of whether or not plaintiff has already
rested its case as to obviate the further presentation of evidence. It is not even a
question of whether the non-appearing defendants are deemed to have waived their
right to cross-examine Bane as to qualify the admission of the deposition sans such
cross-examination. Indeed, We do not see any need to dwell on these matters in view of
this Courts Resolution rendered on April 1, 1998 which already denied the introduction in
evidence of Banes deposition and which has become final in view of plaintiffs failure to
file any motion for reconsideration or appeal within the 15-day reglementary period.
Rightly or wrongly, the resolution stands and for this court to grant plaintiffs motion at
this point in time would in effect sanction plaintiffs disregard for the rules of procedure.
Plaintiff has slept on its rights for almost two years and it was only in February of 2000
that it sought to rectify its ineptitude by filing a motion to reopen its case as to enable it
to introduce and offer Banes deposition as additional evidence, or in the alternative for
the court to take judicial notice of the allegations of the deposition. But how can such a
motion be granted when it has been resolved as early as 1998 that the deposition is
inadmissible. Without plaintiff having moved for reconsideration within the reglementary
period, the resolution has attained finality and its effect cannot be undone by the simple
expedient of filing a motion, which though purporting to be a novel motion, is in reality a
motion for reconsideration of this courts 1998 ruling. [emphases ours]

The resolution triggered the filing of the present petition.

THE PETITION

The petitioner filed the present petition claiming that the Sandiganbayan committed
grave abuse of discretion:

I.

x x x IN HOLDING THAT ITS INTERLOCUTORY ORDER IN 1998 HAD BECOME FINAL.

II.

x x x IN x x x REFUSING TO ADMIT THE BANE DEPOSITION WHICH WAS ALREADY

ADMITTED AS EVIDENCE IN AN INCIDENT CASE (CIVIL CASE NO. 0130) AS PART OF
PETITIONERS EVIDENCE IN THE MAIN x x x CASE (CIVIL CASE NO. 0009).

III.

x x x IN REFUSING TO ADMIT A HIGHLY RELEVANT AND IMPORTANT PIECE OF EVIDENCE

FOR THE PETITIONER ON THE BASIS OF FLIMSY AND TENUOUS TECHNICAL GROUNDS.

The petitioner[41] argues that the 1998 resolution of the Sandiganbayan is merely an
interlocutory order; thus, the petitioners failure to question this 1998 resolution could
not have given it a character of finality so long as the main case remains pending.[42]
On this basis, the petitioner concludes that the Sandiganbayans denial of its 3rd motion
was plainly tainted with grave abuse of discretion.

On the issue of the Sandiganbayans refusal (in its 2002 resolution) either to take judicial
notice of or to admit the Bane deposition as part of its evidence, the petitioner asserts
that Civil Case No. 0130 (where the Bane deposition was originally taken, introduced and
admitted in evidence) is but a child of the parent case, Civil Case No. 0009; under
this relationship, evidence offered and admitted in any of the children cases should be
considered as evidence in the parent case.

Lastly, the petitioner claims that given the crucial importance of the Bane deposition, the
Sandiganbayan should not have denied its admission on flimsy grounds, considering
that:

It was also already stated in the notice (of the taking of the Bane deposition) that it
would be used as evidence in Civil Case No. 0009. Notices having been duly served on
all the parties concerned, they must accordingly be deemed to have waived their right to
cross-examine the witness when they failed to show up.

The Bane deposition was a very vital cog in the case of the petitioner relative to its
allegation that the respondents interest in ETPI and related firms properly belongs to the
government.
The non-inclusion of the Bane deposition in the petitioners formal offer of evidence was
obviously excusable considering the period that had lapsed from the time the case was
filed and the voluminous records that the present case has generated.[43]

THE RESPONDENTS COMMENTS

and THE PETITIONERS REPLY

In the respondents Comments[44] (filed in compliance with our Resolution of April 10,
2002[45]), they claim that the present petition was filed out of time - i.e., beyond the 60-
day reglementary period prescribed under Section 4, Rule 65 of the Rules of Court.[46]
This assertion proceeds from the view that the petitioners 3rd motion, being a mere
rehash of similar motions earlier filed by the petitioner, likewise simply assails the
Sandiganbayans 1998 resolution. Along the same line, they posit that the petitioners
3rd motion actually partakes of a proscribed third motion for reconsideration of the
Sandiganbayans 1998 resolution.[47] They likewise assert, on the assumption that the
1998 resolution is interlocutory in character, that the petitioners failure to contest the
resolution by way of certiorari within the proper period gave the 1998 resolution a
character of finality.

The respondents further claim that after a party has rested its case, the admission of a
supplemental offer of evidence requires the reopening of the case at the discretion of the
trial court; the Sandiganbayan simply exercised its sound discretion in refusing to reopen
the case since the evidence sought to be admitted was within the knowledge of the
[petitioner] and available to [it] before [it] rested its case.[48] The respondents also
advert to the belated filing of the petitioners 3rd motion i.e., after the respondents had
filed their respective demurrers to evidence.

On the petitioners claim of waiver, the respondents assert that they have not waived
their right to cross-examine the deponent; the Sandiganbayan recognized this right in its
1998 resolution and the petitioner never questioned this recognition. They also assert
that the allegations in the Bane deposition cannot be a proper subject of judicial notice
under Rule 129 of the Rules of Court. The respondents lastly submit that the Bane
deposition is inadmissible in evidence because the petitioner failed to comply with the
requisites for admission under Section 47, Rule 130 of the Rules of Court.

In its Reply,[49] the petitioner defends the timeliness of the present petition by arguing
that a party may opt to wait out and collect a pattern of questionable acts before
resorting to the extraordinary remedy of certiorari. The petitioner stresses that it filed
the 3rd motion precisely because of the Sandiganbayans 2000 resolution, which held
that the admission of the Bane deposition should be done through the ordinary formal
offer of evidence. Thus, the Sandiganbayan seriously erred in considering the petitioners
3rd motion as a proscribed motion for reconsideration. The petitioner generally submits
that the dictates of substantial justice should have guided the Sandiganbayan to rule
otherwise.

The petitioner also clarifies that it has not yet rested its case although it has filed a
formal offer of evidence. A party normally rests his case only after the admission of the
pieces of evidence he formally offered; before then, he still has the opportunity to
present further evidence to substantiate his theory of the case should the court reject
any piece of the offered evidence.[50]

The petitioner further maintains that the mere reasonable opportunity to cross-examine
the deponent is sufficient for the admission of the Bane deposition considering that the
deponent is not an ordinary witness who can be easily summoned by our courts in light
of his foreign residence, his citizenship, and his advanced age. The petitioner asserts
that Rule 24 (now Rule 23), and not Section 47, Rule 130, of the Rules of Court should
apply to the present case, as explicitly stated in the notice of the deposition-taking.
To date, respondents Imelda Marcos and the heirs of Potenciano Ilusorio have yet to file
their respective comments on the petition. Given the time that had lapsed since we
required their comments, we resolve to dispense with the filing of these comments and
to consider this petition submitted for decision.

THE ISSUES

On the basis of the pleadings, we summarize the pivotal issues for our resolution, as
follows:

Whether the petition was filed within the required period.

Whether the Sandiganbayan committed grave abuse of discretion

In holding that the 1998 resolution has already attained finality;

In holding that the petitioners 3rd motion partakes of a prohibited motion for
reconsideration;

In refusing to re-open the case given the critical importance of the Bane deposition to
the petitioners cause; and

In refusing to admit the Bane deposition notwithstanding the prior consolidation of Civil
Case No. 0009 and Civil Case No. 0130.

Whether the Bane deposition is admissible under -

Rule 23, Section 4, par. (c) alone or in relation to Section 47, Rule 130 of the Rules of
Court; and

The principle of judicial notice.

THE COURTS RULING

We deny the petition for lack of merit.

I. Preliminary Considerations

I (a). The interlocutory nature of

the Sandiganbayans 1998 resolution.

In determining the appropriate remedy or remedies available, a party aggrieved by a

court order, resolution or decision must first correctly identify the nature of the order,
resolution or decision he intends to assail.[51] In this case, we must preliminarily
determine whether the 1998 resolution is final or interlocutory in nature.

Case law has conveniently demarcated the line between a final judgment or order and an
interlocutory one on the basis of the disposition made.[52] A judgment or order is
considered final if the order disposes of the action or proceeding completely, or
terminates a particular stage of the same action; in such case, the remedy available to
an aggrieved party is appeal. If the order or resolution, however, merely resolves
incidental matters and leaves something more to be done to resolve the merits of the
case, the order is interlocutory[53] and the aggrieved partys remedy is a petition for
certiorari under Rule 65. Jurisprudence pointedly holds that:

As distinguished from a final order which disposes of the subject matter in its entirety or
terminates a particular proceeding or action, leaving nothing else to be done but to
enforce by execution what has been determined by the court, an interlocutory order
does not dispose of a case completely, but leaves something more to be adjudicated
upon. The term final judgment or order signifies a judgment or an order which disposes
of the case as to all the parties, reserving no further questions or directions for future
determination.

On the other hand, a court order is merely interlocutory in character if it leaves

substantial proceedings yet to be had in connection with the controversy. It does not
end the task of the court in adjudicating the parties contentions and determining their
rights and liabilities as against each other. In this sense, it is basically provisional in its
application.[54] (emphasis supplied)

Under these guidelines, we agree with the petitioner that the 1998 resolution is
interlocutory. The Sandiganbayans denial of the petitioners 1st motion through the
1998 Resolution came at a time when the petitioner had not even concluded the
presentation of its evidence. Plainly, the denial of the motion did not resolve the merits
of the case, as something still had to be done to achieve this end.

We clarify, too, that an interlocutory order remains under the control of the court until
the case is finally resolved on the merits. The court may therefore modify or rescind the
order upon sufficient grounds shown at any time before final judgment.[55] In this light,
the Sandiganbayans 1998 resolution which merely denied the adoption of the Bane
deposition as part of the evidence in Civil Case No. 0009 could not have attained
finality (in the manner that a decision or final order resolving the case on the merits
does) despite the petitioners failure to move for its reconsideration or to appeal.[56]

I (b). The 3rd motion was not

prohibited by the Rules.

We also agree with the petitioner that its 3rd motion cannot be considered as a
proscribed third (actually second) motion for reconsideration of the Sandiganbayans
1998 resolution. As Section 5, Rule 37 of the Rules of Court clearly provides, the
proscription against a second motion for reconsideration is directed against a judgment
or final order. Although a second motion for reconsideration of an interlocutory order
can be denied on the ground that it is a mere "rehash" of the arguments already passed
upon and resolved by the court, it cannot be rejected on the ground that it is forbidden
by the law or by the rules as a prohibited motion.[57]

I (c). The 1998 resolution was not ripe

for a petition for certiorari.

Under Section 1, Rule 41 of the Rules of Court, an aggrieved party may appeal from a
judgment or final order which completely disposes of a case or from an order that the
Rules of Court declares to be appealable. While this provision prohibits an appeal from an
interlocutory order, the aggrieved party is afforded the chance to question an
interlocutory order through a special civil action of certiorari under Rule 65; the petition
must be filed within sixty days from notice of the assailed judgment, order, resolution, or
denial of a motion for reconsideration.

On the premise that the 1998 resolution is interlocutory in nature, the respondents insist
that the 60-day period for filing a petition for certiorari should be reckoned from the
petitioners notice of the Sandiganbayans 1998 resolution. They argue that since this
ruling had long been rendered by the court, the petitioners subsequent filing of similar
motions was actually a devious attempt to resuscitate the long-denied admission of the
Bane deposition.

We do not find the respondents submission meritorious. While the 1998 resolution is an
interlocutory order, as correctly argued by the petitioner and impliedly conceded by the
respondents, the claim that the 1998 resolution should have been immediately
questioned by the petitioner on certiorari is not totally correct as a petition for certiorari
is not grounded solely on the issuance of a disputed interlocutory ruling.[58] For a
petition for certiorari to prosper, Section 1, Rule 65 of the Rules of Court requires, among
others, that neither an appeal nor any plain, speedy and adequate remedy in the
ordinary course of law is available to the aggrieved party. As a matter of exception, the
writ of certiorari may issue notwithstanding the existence of an available alternative
remedy, if such remedy is inadequate or insufficient in relieving the aggrieved party of
the injurious effects of the order complained of.[59]

We note that at the time of its 1st motion in Civil Case No. 0009, the petitioner had not
yet concluded the presentation of its evidence, much less made any formal offer of
evidence. At this stage of the case, the prematurity of using the extraordinary remedy of
certiorari to question the admission of the Bane deposition is obvious. After the denial of
the 1st motion, the plain remedy available to the petitioner was to move for a
reconsideration to assert and even clarify its position on the admission of the Bane
deposition. The petitioner could introduce[60] anew the Bane deposition and include this
as evidence in its formal offer[61] as the petitioner presumably did in Civil Case No.
0130.

Thus, at that point, the case was not yet ripe for the filing of a petition for certiorari, and
the denial of the 1st motion could not have been the reckoning point for the period of
filing such a petition.

II. The Sandiganbayans ruling on the finality

of its 1998 resolution was legally erroneous but
did not constitute grave abuse of discretion

In light of the above discussions and conclusions, the Sandiganbayan undoubtedly erred
on a question of law in its ruling, but this legal error did not necessarily amount to a
grave abuse of discretion in the absence of a clear showing that its action was a
capricious and whimsical exercise of judgment affecting its exercise of jurisdiction.[62]
Without this showing, the Sandiganbayans erroneous legal conclusion was only an error
of judgment, or, at best, an abuse of discretion but not a grave one. For this reason
alone, the petition should be dismissed.

Despite this conclusion, however, we opt not to immediately dismiss the petition in light
of the unique circumstances of this case where the petitioner cannot entirely be faulted
for not availing of the remedy at the opportune time, and where the case, by its nature,
is undoubtedly endowed with public interest and has become a matter of public concern.
[63] In other words, we opt to resolve the petition on the merits to lay the issues raised
to rest and to avoid their recurrence in the course of completely resolving the merits of
Civil Case No. 0009.

Although the word rested nowhere appears in the Rules of Court, ordinary court
procedure has inferred it from an overview of trial sequence under Section 5, Rule 30
(which capsulizes the order of presentation of a partys evidence during trial), read in
relation to Rule 18 on Pre-Trial,[64] both of the Rules of Court. Under Section 5, Rule 30,
after a party has adduced his direct evidence in the course of discharging the burden of
proof,[65] he is considered to have rested his case, and is thereafter allowed to offer
rebutting evidence only.[66] Whether a party has rested his case in some measure
depends on his manifestation in court on whether he has concluded his presentation of
evidence.[67]

In its second and third motions, respectively, the petitioner expressly admitted that due
to oversight, [the petitioner] closed and rested its case;[68] and that it had terminated
the presentation of its evidence in x x x Civil Case No. 0009.[69] In the face of these
categorical judicial admissions,[70] the petitioner cannot suddenly make an about-face
and insist on the introduction of evidence out of the usual order. Contrary to the
petitioners assertion, the resting of its case could not have been conditioned on the
admission of the evidence it formally offered. To begin with, the Bane deposition, which
is the lone piece of evidence subject of this present petition, was not among the pieces
of evidence included in its formal offer of evidence and thus could not have been
admitted or rejected by the trial court.

The Court observes with interest that it was only in this present petition for certiorari that
the petitioner had firmly denied having rested its case.[71] Before then, the petitioner
never found it appropriate to question on certiorari the Sandiganbayans denial of its 2nd
motion which prayed, inter alia, for the reopening of the case. This is a fatal defect in the
petitioners case.

Although the denial of the petitioners first motion did not necessitate an immediate
recourse to the corrective writ of certiorari, the denial of the 2nd motion dictated a
different course of action. The petitioners non-observance of the proper procedure for
the admission of the Bane deposition, while seemingly innocuous, carried fatal
implications for its case. Having been rebuffed on its first attempt to have the Bane
deposition adopted in Civil Case No. 0009, and without seeking reconsideration of the
denial, the petitioner presented its other pieces of evidence and eventually rested its
case. This time, the petitioner forgot about the Bane deposition and so failed to include
that piece of evidence in its formal offer of evidence.

More than two years later, the petitioner again tried to squeeze in the Bane deposition
into its case. In resolving the petitioners motion for reconsideration of the
Sandiganbayans 2000 resolution, the Sandiganbayan held that the Bane deposition has
become part and parcel of Civil Case No. 0009. This pronouncement has obscured the
real status of the Bane deposition as evidence (considering that, earlier, the
Sandiganbayan already denied the petitioners attempt to adopt the Bane deposition as
evidence in Civil Case No. 0009 for the deponent cannot be cross-examined in court).
Nevertheless, the Sandiganbayan ultimately denied the petitioners motion to reopen the
case. Having judicially admitted the resting of its case, the petitioner should have
already questioned the denial of its 2nd motion by way of certiorari, since the denial of
its attempt to reopen the case effectively foreclosed all avenues available to it for the
consideration of the Bane deposition. Instead of doing so, however, the petitioner
allowed the 60-day reglementary period, under Section 4, Rule 65 of the Rules of Court,
to lapse, and proceeded to file its 3rd motion.

Significantly, the petitioner changed its legal position in its 3rd motion by denying having
rested its case and insisting on the introduction of the Bane deposition. Rebuffed once
more, the petitioner filed the present petition, inviting our attention to the
Sandiganbayans resolutions,[72] which allegedly gave it mixed signals.[73] By
pointing to these resolutions, ironically, even the petitioner impliedly recognized that
they were then already ripe for review on certiorari. What the petitioner should have
realized was that its 2nd motion unequivocally aimed to reopen the case for the
introduction of further evidence consisting of the Bane deposition. Having been
ultimately denied by the court, the petitioner could not have been prevented from taking
the proper remedy notwithstanding any perceived ambiguity in the resolutions.

On the other end, though, there was nothing intrinsically objectionable in the petitioners
motion to reopen its case before the court ruled on its formal offer of evidence. The Rules
of Court does not prohibit a party from requesting the court to allow it to present
additional evidence even after it has rested its case. Any such opportunity, however, for
the ultimate purpose of the admission of additional evidence is already addressed to the
sound discretion of the court. It is from the prism of the exercise of this discretion that
the Sandiganbayans refusal to reopen the case (for the purpose of introducing, marking
and offering additional evidence) should be viewed. We can declare this
Sandiganbayan action invalid if it had acted with grave abuse of discretion.

III. The Sandiganbayan gravely abused its

discretion in ultimately refusing to reopen
the case for the purpose of introducing and
admitting in evidence the Bane deposition

The basis for a motion to reopen a case to introduce further evidence is Section 5, Rule
30 of the Rules of Court, which reads:

Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:

xxxx

(f) The parties may then respectively adduce rebutting evidence only, unless the court,
for good reasons and in the furtherance of justice, permits them to adduce evidence
upon their original case[.] [emphases ours]

Under this rule, a party who has the burden of proof must introduce, at the first instance,
all the evidence he relies upon[74] and such evidence cannot be given piecemeal.[75]
The obvious rationale of the requirement is to avoid injurious surprises to the other party
and the consequent delay in the administration of justice.[76]

A partys declaration of the completion of the presentation of his evidence prevents him
from introducing further evidence;[77] but where the evidence is rebuttal in character,
whose necessity, for instance, arose from the shifting of the burden of evidence from one
party to the other;[78] or where the evidence sought to be presented is in the nature of
newly discovered evidence,[79] the partys right to introduce further evidence must be
recognized. Otherwise, the aggrieved party may avail of the remedy of certiorari.

Largely, the exercise of the courts discretion[80] under the exception of Section 5(f),
Rule 30 of the Rules of Court depends on the attendant facts i.e., on whether the
evidence would qualify as a good reason and be in furtherance of the interest of
justice. For a reviewing court to properly interfere with the lower courts exercise of
discretion, the petitioner must show that the lower courts action was attended by grave
abuse of discretion. Settled jurisprudence has defined this term as the capricious and
whimsical exercise of judgment, equivalent to lack of jurisdiction; or, the exercise of
power in an arbitrary manner by reason of passion, prejudice, or personal hostility, so
patent or so gross as to amount to an evasion of a positive duty, to a virtual refusal to
perform the mandated duty, or to act at all in contemplation of the law.[81] Grave abuse
of discretion goes beyond the bare and unsupported imputation of caprice, whimsicality
or arbitrariness, and beyond allegations that merely constitute errors of judgment[82] or
mere abuse of discretion.[83]

In Lopez v. Liboro,[84] we had occasion to make the following pronouncement:

After the parties have produced their respective direct proofs, they are allowed to offer
rebutting evidence only, but, it has been held, the court, for good reasons, in the
furtherance of justice, may permit them to offer evidence upon their original case, and
its ruling will not be disturbed in the appellate court where no abuse of discretion
appears. So, generally, additional evidence is allowed when it is newly discovered, or
where it has been omitted through inadvertence or mistake, or where the purpose of the
evidence is to correct evidence previously offered. The omission to present evidence on
the testator's knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight. (citations omitted; emphases ours)

Likewise, in Director of Lands v. Roman Archbishop of Manila,[85] we ruled:

The strict rule is that the plaintiff must try his case out when he commences.
Nevertheless, a relaxation of the rule is permitted in the sound discretion of the court.
The proper rule for the exercise of this discretion, it has been said by an eminent
author, is, that material testimony should not be excluded because offered by the
plaintiff after the defendant has rested, although not in rebuttal, unless it has been kept
back by a trick, and for the purpose of deceiving the defendant and affecting his case
injuriously.

These principles find their echo in Philippine remedial law. While the general rule is
rightly recognized, the Code of Civil Procedure authorizes the judge for special reasons,
to change the order of the trial, and "for good reason, in the furtherance of justice," to
permit the parties to offer evidence upon their original case. These exceptions are
made stronger when one considers the character of registration proceedings and the fact
that where so many parties are involved, and action is taken quickly and abruptly,
conformity with precise legal rules should not always be expected. Even at the risk of
violating legal formul, an opportunity should be given to parties to submit additional
corroborative evidence in support of their claims of title, if the ends of justice so require.
(emphases ours)

In his commentaries, Chief Justice Moran had this to say:

However, the court for good reasons, may, in the furtherance of justice, permit the
parties to offer evidence upon their original case, and its ruling will not be disturbed
where no abuse of discretion appears, Generally, additional evidence is allowed when x x
x; but it may be properly disallowed where it was withheld deliberately and without
justification.[86]

The weight of the exception is also recognized in foreign jurisprudence.[87]

Under these guidelines, we hold that the Sandiganbayan gravely abused its discretion in
refusing to reopen the case. Instead of squarely ruling on the petitioners 2nd motion to
avoid any uncertainty on the evidentiary status of the Bane deposition, the
Sandiganbayans action actually left the petitioners concern in limbo by considering the
petitioners motion redundant. This is tantamount to a refusal to undertake a positive
duty as mandated by the circumstances and is equivalent to an act outside the
contemplation of law.

It has not escaped our notice that at the time the petitioner moved to re-open its case,
the respondents had not yet even presented their evidence in chief. The respondents,
therefore, would not have been prejudiced by allowing the petitioners introduction of the
Bane deposition, which was concededly omitted through oversight.[88] The higher
interest of substantial justice, of course, is another consideration that cannot be taken
lightly.[89]

In light of these circumstances, the Sandiganbayan should not have perfunctorily applied
Section 5, Rule 30 of the Rules of Court on the petitioners request to reopen the case for
the submission of the Bane deposition.
On the basis of this conclusion, a remand of this case should follow as a matter of
course. The state of the parties submissions and the delay that has already attended
this aspect of Civil Case No. 0009, however, dictate against this obvious course of action.
At this point, the parties have more than extensively argued for or against the admission
of the Bane deposition. Civil Case No. 0009 is a 25-year old sequestration case that is
now crying out for complete resolution. Admissibility, too, is an issue that would have
again been raised on remand and would surely stare us in the face after remand.[90] We
are thus left with no choice but to resolve the issue of admissibility of the Bane
deposition here and now.

IV. The admissibility of the Bane deposition

IV (a). The consolidation of Civil Case No. 0009 and Civil Case No. 0130 did not dispense
with the usual requisites of admissibility

In support of its 3rd motion, the petitioner argues that the Bane deposition can be
admitted in evidence without observing the provisions of Section 47, Rule 130 of the
Rules of Court.[91] The petitioner claims that in light of the prior consolidation of Civil
Case No. 0009 and Civil Case No. 0130, among others,[92] the former case or
proceeding that Section 47, Rule 130 speaks of no longer exists.

Rule 31 of the old Rules of Court[93] the rule in effect at the time Civil Case Nos. 0009
and 0130 were consolidated provided that:

Rule 31
Consolidation or Severance

Section 1. Consolidation. When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of any or all the matters in
issue in the actions; it may order all the actions consolidated; and it may make such
orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
[94] (emphases ours)

Consolidation is a procedural device granted to the court as an aid in deciding how cases
in its docket are to be tried so that the business of the court may be dispatched
expeditiously and with economy while providing justice to the parties. To promote this
end, the rule permits the consolidation and a single trial of several cases in the courts
docket, or the consolidation of issues within those cases.[95]

A reading of Rule 31 of the Rules of Court easily lends itself to two observations. First,
Rule 31 is completely silent on the effect/s of consolidation on the cases consolidated; on
the parties and the causes of action involved; and on the evidence presented in the
consolidated cases. Second, while Rule 31 gives the court the discretion either to order a
joint hearing or trial, or to order the actions consolidated, jurisprudence will show that
the term consolidation is used generically and even synonymously with joint hearing or
trial of several causes.[96] In fact, the title consolidation of Rule 31 covers all the
different senses of consolidation, as discussed below.

These observations are not without practical reason. Considering that consolidation is
basically a function given to the court, the latter is in the best position to determine for
itself (given the nature of the cases, the complexity of the issues involved, the parties
affected, and the courts capability and resources vis--vis all the official business
pending before it, among other things) what consolidation will bring, bearing in mind
the rights of the parties appearing before it.

To disregard the kind of consolidation effected by the Sandiganbayan on the simple and
convenient premise that the deposition-taking took place after the Sandiganbayan
ordered the consolidation is to beg the question. It is precisely the silence of our Rules of
Procedure and the dearth of applicable case law on the effect of consolidation that
strongly compel this Court to determine the kind of consolidation effected to directly
resolve the very issue of admissibility in this case.

In the context of legal procedure, the term consolidation is used in three different
senses:[97]

(1) Where all except one of several actions are stayed until one is tried, in which case
the judgment in the one trial is conclusive as to the others. This is not actually
consolidation but is referred to as such. (quasi-consolidation)[98]

(2) Where several actions are combined into one, lose their separate identity, and
become a single action in which a single judgment is rendered. This is illustrated by a
situation where several actions are pending between the same parties stating claims
which might have been set out originally in one complaint. (actual consolidation)[99]

(3) Where several actions are ordered to be tried together but each retains its separate
character and requires the entry of a separate judgment. This type of consolidation does
not merge the suits into a single action, or cause the parties to one action to be parties
to the other. (consolidation for trial)[100]

Considering that the Sandiganbayans order[101] to consolidate several incident cases

does not at all provide a hint on the extent of the courts exercise of its discretion as to
the effects of the consolidation it ordered in view of the function of this procedural
device to principally aid the court itself in dealing with its official business we are
compelled to look deeper into the voluminous records of the proceedings conducted
below. We note that there is nothing that would even suggest that the Sandiganbayan in
fact intended a merger of causes of action, parties and evidence.[102] To be sure, there
would have been no need for a motion to adopt (which did not remain unopposed) the
testimonies in the incident cases had a merger actually resulted from the order of
consolidation, for in that case, the Sandiganbayan can already take judicial notice of the
same.

Significantly, even the petitioner itself viewed consolidation, at most, to be merely a

consolidation for trial.[103] Accordingly, despite the consolidation in 1993, the petitioner
acceded to the Sandiganbayans 1998 Resolution (which denied the petitioners 1st
Motion on the ground that the witnesses, whose testimony in the incident cases is
sought to be adopted, are not available for cross-examination in the Sandiganbayan)
by presenting these other witnesses again in the main case, so that the respondents can
cross-examine them.

These considerations run counter to the conclusion that the Sandiganbayans order of
consolidation had actually resulted in the complete merger of the incident cases with the
main case, in the sense of actual consolidation, and that the parties in these
consolidated cases had (at least constructively) been aware of and had allowed actual
consolidation without objection.[104]

Considering, too, that the consolidated actions were originally independent of one
another and the fact that in the present case the party respondents to Civil Case No.
0009 (an action for reconveyance, accounting, restitution and damages) are not parties
to Civil Case No. 0130 (a special civil action filed by an ETPI stockholder involving a
corporate squabble within ETPI), the conclusion that the Sandiganbayan in fact intended
an actual consolidation and, together with the parties affected,[105] acted towards that
end - where the actions become fused and unidentifiable from one another and where
the evidence appreciated in one action is also appreciated in another action must find
support in the proceedings held below. This is particularly true in a case with the
magnitude and complexity of the present case. Otherwise, to impose upon the
respondents the effects of an actual consolidation (which find no clear support in the
provisions of the Rules of Court, jurisprudence,[106] and even in the proceedings before
the Sandiganbayan itself and despite the aforementioned considerations) results in an
outright deprivation of the petitioners right to due process. We reach this conclusion
especially where the evidence sought to be admitted is not simply a testimony taken in
one of the several cases, but a deposition upon oral examination taken in another
jurisdiction and whose admission is governed by specific provisions on our rules on
evidence.

We stress on this point, too, that while the Sandiganbayan ordered the consolidation in
1993 (that is, before the deposition was taken), neither does the Pre-Trial Order[107]
issued by the Sandiganbayan in 1997 in Civil Case No. 0009 contain any reference,
formal or substantive, to Civil Case No. 0130.[108] Interestingly, in its Pre-Trial Brief
dated August 30, 1996,[109] the petitioner even made a representation to present Bane
as one of its witnesses.

IV (b). Use of deposition under Section 4,

Rule 23 and as a former testimony under
Section 47, Rule 130

Since the present consolidation did not affect Civil Case No. 0130 as an original, albeit
incidental, case, the admissibility of the Bane deposition cannot avoid being measured
against the requirements of Section 47, Rule 130 of the Rules of Court the rule on the
admissibility of testimonies or deposition taken in a different proceeding. In this regard,
the petitioner argues that Section 4, Rule 23 of the Rules of Court (then Rule 24)[110]
must, at any rate, prevail over Section 47, Rule 130[111] of the same Rules.

At the outset, we note that when the petitioners motion to adopt the testimonies taken
in the incident cases drew individual oppositions from the respondents, the petitioner
represented to the Sandiganbayan its willingness to comply with the provisions of
Section 47, Rule 130 of the Rules of Court,[112] and, in fact, again presented some of the
witnesses. The petitioners about-face two years thereafter even contributed to the
Sandiganbayans own inconsistency on how to treat the Bane deposition, in particular, as
evidence.

Section 4, Rule 23 of the Rules of Court on Deposition Pending Action (deposition de

bene esse) provides for the circumstances when depositions may be used in the trial, or
at the hearing of a motion or an interlocutory proceeding.

SEC. 4. Use of depositions. At the trial or upon the hearing of a motion or an

interlocutory proceeding, any part or all of a deposition, so far as admissible under the
rules of evidence, may be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in accordance with any one of the
following provisions:

xxxx

(c) The deposition of a witness, whether or not a party, may be used by any party for any
purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a
distance more than one hundred (100) kilometers from the place of trial or hearing, or is
out of the Philippines, unless it appears that his absence was procured by the party
offering the deposition; or (3) that the witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has
been unable to procure the attendance of the witness by subpoena; or (5) upon
application and notice, that such exceptional circumstances exist as to make it desirable,
in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used[.]
[emphasis ours]

On the other hand, Section 47, Rule 130 of the Rules of Court provides:
SEC. 47. Testimony or deposition at a former proceeding. The testimony or deposition
of a witness deceased or unable to testify, given in a former case or proceeding, judicial
or administrative, involving the same parties and subject matter, may be given in
evidence against the adverse party who had the opportunity to cross-examine him.

A plain reading of Rule 23 of the Rules of Court readily rejects the petitioners position
that the Bane deposition can be admitted into evidence without observing the
requirements of Section 47, Rule 130 of the Rules of Court.

Before a party can make use of the deposition taken at the trial of a pending action,
Section 4, Rule 23 of the Rules of Court does not only require due observance of its sub-
paragraphs (a) to (d); it also requires, as a condition for admissibility, compliance with
the rules on evidence. Thus, even Section 4, Rule 23 of the Rules of Court makes an
implied reference to Section 47, Rule 130 of the Rules of Court before the deposition may
be used in evidence. By reading Rule 23 in isolation, the petitioner failed to recognize
that the principle conceding admissibility to a deposition under Rule 23 should be
consistent with the rules on evidence under Section 47, Rule 130.[113] In determining
the admissibility of the Bane deposition, therefore, reliance cannot be given on one
provision to the exclusion of the other; both provisions must be considered. This is
particularly true in this case where the evidence in the prior proceeding does not simply
refer to a witness testimony in open court but to a deposition taken under another and
farther jurisdiction.

A common thread that runs from Section 4, Rule 23 of the Rules of Court and Section 47,
Rule 130 of the same Rules is their mutual reference to depositions.

A deposition is chiefly a mode of discovery whose primary function is to supplement the

pleadings for the purpose of disclosing the real points of dispute between the parties and
affording an adequate factual basis during the preparation for trial.[114] Since
depositions are principally made available to the parties as a means of informing
themselves of all the relevant facts, depositions are not meant as substitute for the
actual testimony in open court of a party or witness. Generally, the deponent must be
presented for oral examination in open court at the trial or hearing. This is a requirement
of the rules on evidence under Section 1, Rule 132 of the Rules of Court.[115]

Examination to be done in open court. The examination of witnesses presented in a

trial or hearing shall be done in open court, and under oath or affirmation. Unless the
witness is incapacitated to speak, or the question calls for a different mode of answer,
the answers of the witness shall be given orally.

Indeed, any deposition offered to prove the facts set forth therein, in lieu of the actual
oral testimony of the deponent in open court, may be opposed by the adverse party and
excluded under the hearsay rule i.e., that the adverse party had or has no opportunity
to cross-examine the deponent at the time that his testimony is offered. That opportunity
for cross-examination was afforded during the taking of the deposition alone is no
argument, as the opportunity for cross-examination must normally be accorded a party
at the time that the testimonial evidence is actually presented against him during the
trial or hearing of a case.[116] However, under certain conditions and for certain limited
purposes laid down in Section 4, Rule 23 of the Rules of Court, the deposition may be
used without the deponent being actually called to the witness stand.[117]

Section 47, Rule 130 of the Rules of Court is an entirely different provision. While a
former testimony or deposition appears under the Exceptions to the Hearsay Rule, the
classification of former testimony or deposition as an admissible hearsay is not
universally conceded.[118] A fundamental characteristic of hearsay evidence is the
adverse partys lack of opportunity to cross-examine the out-of-court declarant.
However, Section 47, Rule 130 explicitly requires, inter alia, for the admissibility of a
former testimony or deposition that the adverse party must have had an opportunity to
cross-examine the witness or the deponent in the prior proceeding.
This opportunity to cross-examine though is not the ordinary cross-examination[119]
afforded an adverse party in usual trials regarding matters stated in the direct
examination or connected therewith. Section 47, Rule 130 of the Rules of Court
contemplates a different kind of cross-examination, whether actual or a mere
opportunity, whose adequacy depends on the requisite identity of issues in the former
case or proceeding and in the present case where the former testimony or deposition is
sought to be introduced.

Section 47, Rule 130 requires that the issues involved in both cases must, at least, be
substantially the same; otherwise, there is no basis in saying that the former statement
was - or would have been - sufficiently tested by cross-examination or by an opportunity
to do so.[120] (The requirement of similarity though does not mean that all the issues in
the two proceedings should be the same.[121] Although some issues may not be the
same in the two actions, the admissibility of a former testimony on an issue which is
similar in both actions cannot be questioned.[122])

These considerations, among others, make Section 47, Rule 130 a distinct rule on
evidence and therefore should not be confused with the general provisions on deposition
under Rule 23 of the Rules of Court. In other words, even if the petitioner complies with
Rule 23 of the Rules of Court on the use of depositions, the observance of Section 47,
Rule 130 of the Rules of Court cannot simply be avoided or disregarded.

Undisputably, the Sandiganbayan relied on the Bane deposition, taken in Civil Case No.
0130, for purposes of this very same case. Thus, what the petitioner established and
what the Sandiganbayan found, for purposes of using the Bane deposition, refer only to
the circumstances laid down under Section 4(c), Rule 23 of the Rules of Court, not
necessarily to those of Section 47, Rule 130 of the Rules of Court, as a distinct rule on
evidence that imposes further requirements in the use of depositions in a different case
or proceeding. In other words, the prior use of the deposition under Section 4(c), Rule 23
cannot be taken as compliance with Section 47, Rule 130 which considers the same
deposition as hearsay, unless the requisites for its admission under this rule are
observed. The aching question is whether the petitioner complied with the latter rule.

Section 47, Rule 130 of the Rules of Court lays down the following requisites for the
admission of a testimony or deposition given at a former case or proceeding.

1. The testimony or deposition of a witness deceased or otherwise unable to testify;

2. The testimony was given in a former case or proceeding, judicial or administrative;
3. Involving the same parties;
4. Relating to the same matter;
5. The adverse party having had the opportunity to cross-examine him.[123]

The reasons for the admissibility of testimony or deposition taken at a former trial or
proceeding are the necessity for the testimony and its trustworthiness.[124] However,
before the former testimony or deposition can be introduced in evidence, the proponent
must first lay the proper predicate therefor,[125] i.e., the party must establish the basis
for the admission of the Bane deposition in the realm of admissible evidence. This basis
is the prior issue that we must now examine and resolve.

IV (c). Unavailability of witness

For the admission of a former testimony or deposition, Section 47, Rule 130 of the Rules
of Court simply requires, inter alia, that the witness or deponent be deceased or unable
to testify. On the other hand, in using a deposition that was taken during the pendency
of an action, Section 4, Rule 23 of the Rules of Court provides several grounds that will
justify dispensing with the actual testimony of the deponent in open court and specifies,
inter alia, the circumstances of the deponents inability to attend or testify, as follows:
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment[.] [emphases ours][126]

The phrase unable to testify appearing in both Rule 23 and Rule 130 of the Rules of
Court refers to a physical inability to appear at the witness stand and to give a testimony.
[127] Hence notwithstanding the deletion of the phrase out of the Philippines, which
previously appeared in Section 47, Rule 130 of the Rules of Court, absence from
jurisdiction[128] - the petitioners excuse for the non-presentation of Bane in open court -
may still constitute inability to testify under the same rule. This is not to say, however,
that resort to deposition on this instance of unavailability will always be upheld. Where
the deposition is taken not for discovery purposes, but to accommodate the deponent,
then the deposition should be rejected in evidence.[129]

Although the testimony of a witness has been given in the course of a former proceeding
between the parties to a case on trial, this testimony alone is not a ground for its
admission in evidence. The witness himself, if available, must be produced in court as if
he were testifying de novo since his testimony given at the former trial is mere hearsay.
[130] The deposition of a witness, otherwise available, is also inadmissible for the same
reason.

Indeed, the Sandiganbayans reliance on the Bane deposition in the other case (Civil
Case No. 0130) is an argument in favor of the requisite unavailability of the witness. For
purposes of the present case (Civil Case No. 0009), however, the Sandiganbayan would
have no basis to presume, and neither can or should we, that the previous condition,
which previously allowed the use of the deposition, remains and would thereby justify
the use of the same deposition in another case or proceeding, even if the other case or
proceeding is before the same court. Since the basis for the admission of the Bane
deposition, in principle, being necessity,[131] the burden of establishing its existence
rests on the party who seeks the admission of the evidence. This burden cannot be
supplanted by assuming the continuity of the previous condition or conditions in light of
the general rule against the non-presentation of the deponent in court.[132]

IV (d). The requirement of opportunity of

the adverse party to cross-examine; identity
of parties; and identity of subject matter

The function of cross-examination is to test the truthfulness of the statements of a

witness made on direct examination.[133] The opportunity of cross-examination has
been regarded as an essential safeguard of the accuracy and completeness of a
testimony. In civil cases, the right of cross-examination is absolute, and is not a mere
privilege of the party against whom a witness may be called.[134] This right is available,
of course, at the taking of depositions, as well as on the examination of witnesses at the
trial. The principal justification for the general exclusion of hearsay statements and for
the admission, as an exception to the hearsay rule, of reported testimony taken at a
former hearing where the present adversary was afforded the opportunity to cross-
examine, is based on the premise that the opportunity of cross-examination is an
essential safeguard[135] against falsehoods and frauds.

In resolving the question of whether the requirement of opportunity to cross-examine has

been satisfied, we have to consider first the required identity of parties as the present
opponent to the admission of the Bane deposition to whom the opportunity to cross-
examine the deponent is imputed may not after all be the same adverse party who
actually had such opportunity.

To render the testimony of a witness admissible at a later trial or action, the parties to
the first proceeding must be the same as the parties to the later proceeding. Physical
identity, however, is not required; substantial identity[136] or identity of interests[137]
suffices, as where the subsequent proceeding is between persons who represent the
parties to the prior proceeding by privity in law, in blood, or in estate. The term privity
denotes mutual or successive relationships to the same rights of property.[138]
In the present case, the petitioner failed to impute, much less establish, the identity of
interest or privity between the then opponent, Africa, and the present opponents, the
respondents. While Africa is the son of the late respondent Jose Africa, at most, the
deposition should be admissible only against him as an ETPI stockholder who filed the
certiorari petition docketed as Civil Case No. 0130 (and, unavoidably, as successor-in-
interest of the late respondent Jose Africa). While Africa and the respondents are all ETPI
stockholders, this commonality does not establish at all any privity between them for
purposes of binding the latter to the acts or omissions of the former respecting the cross-
examination of the deponent. The sequestration of their shares does not result in the
integration of their rights and obligations as stockholders which remain distinct and
personal to them, vis-a-vis other stockholders.[139]

IV (d1). The respondents notice of taking of

Bane deposition is insufficient evidence of waiver

The petitioner staunchly asserts that the respondents have waived their right to cross-
examine the deponent for their failure to appear at the deposition-taking despite
individual notices previously sent to them.[140]

In its first Notice to Take Oral Deposition of Mr. Maurice V. Bane dated August 30, 1996,
[141] the petitioner originally intended to depose Mr. Bane on September 25-26 1996.
Because it failed to specify in the notice the purpose for taking Mr. Banes deposition, the
petitioner sent a Second Amended Notice to Take Deposition of Mr. Maurice V. Bane Upon
Oral Examination where it likewise moved the scheduled deposition-taking to October
23-26, 1996.

The records show that Africa moved several times for protective orders against the
intended deposition of Maurice Bane.[142] On the other hand, among the respondents,
only respondent Enrile appears to have filed an Opposition[143] to the petitioners first
notice, where he squarely raised the issue of reasonability of the petitioners nineteen-
day first notice. While the Sandiganbayan denied Africas motion for protective orders,
[144] it strikes us that no ruling was ever handed down on respondent Enriles
Opposition.[145]

It must be emphasized that even under Rule 23, the admission of the deposition upon
oral examination is not simply based on the fact of prior notice on the individual sought
to be bound thereby. In Northwest Airlines v. Cruz, [146] we ruled that -

The provision explicitly vesting in the court the power to order that the deposition shall
not be taken connotes the authority to exercise discretion on the matter. However, the
discretion conferred by law is not unlimited. It must be exercised, not arbitrarily or
oppressively, but in a reasonable manner and in consonance with the spirit of he law.
The courts should always see to it that the safeguards for the protection of the parties
and deponents are firmly maintained. As aptly stated by Chief Justice Moran:

. . . . (T)his provision affords the adverse party, as well as the deponent, sufficient
protection against abuses that may be committed by a party in the exercise of his
unlimited right to discovery. As a writer said: "Any discovery involves a prying into
another person's affairs prying that is quite justified if it is to be a legitimate aid to
litigation, but not justified if it is not to be such an aid." For this reason, courts are given
ample powers to forbid discovery which is intended not as an aid to litigation, but merely
to annoy, embarrass or oppress either the deponent or the adverse party, or both.
(emphasis ours)

In the present case, not only did the Sandiganbayan fail to rule on respondent Enriles
Opposition (which is equally applicable to his co-respondents), it also failed to provide
even the bare minimum safeguards for the protection of, (more so) non-parties,[147]
and to ensure that these safeguards are firmly maintained. Instead, the Sandiganbayan
simply bought the petitioners assertion (that the taking of Bane deposition is a matter of
right) and treated the lingering concerns e.g., reasonability of the notice; and the non-
party status of the respondents in Civil Case No. 0130 - at whose incident (docketed as
G.R. No. 107789) the Bane deposition was taken - rather perfunctorily to the prejudice of
the respondents.

In conjunction with the order of consolidation, the petitioners reliance on the prior notice
on the respondents, as adequate opportunity for cross-examination, cannot override the
non-party status of the respondents in Civil Case No. 0130 the effect of consolidation
being merely for trial. As non-parties, they cannot be bound by proceedings in that case.
Specifically, they cannot be bound by the taking of the Bane deposition without the
consequent impairment of their right of cross-examination.[148] Opportunity for cross-
examination, too, even assuming its presence, cannot be singled out as basis for the
admissibility of a former testimony or deposition since such admissibility is also anchored
on the requisite identity of parties. To reiterate, although the Sandiganbayan considered
the Bane deposition in resolving Civil Case No. 0130, its action was premised on Africas
status as a party in that case where the Bane deposition was taken.

Corollarily, the idea of privity also permeates Rule 23 of the Rules of Court through its
Section 5 which provides:

Effect of substitution of parties. Substitution of parties does not affect the right to use
depositions previously taken; and, when an action has been dismissed and another
action involving the same subject is afterward brought between the same parties or their
representatives or successors in interest, all depositions lawfully taken and duly filed in
the former action may be used in the latter as if originally taken therefor. [italics and
underscoring ours]

In light of these considerations, we reject the petitioners claim that the respondents
waived their right to cross-examination when they failed to attend the taking of the Bane
deposition. Incidentally, the respondents vigorous insistence on their right to cross-
examine the deponent speaks loudly that they never intended any waiver of this right.

Interestingly, the petitioners notice of the deposition-taking relied on Rule 23 of the

Rules of Court. Section 15 of this rule reads:

Deposition upon oral examination; notice; time and place. A party desiring to take the
deposition of any person upon oral examination shall give reasonable notice in writing to
every other party to the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if known, and if
the name is not known, a general description sufficient to identify him or the particular
class or group to which he belongs. On motion of any party upon whom the notice is
served, the court may for cause shown enlarge or shorten the time.

Under this provision, we do not believe that the petitioner could reasonably expect that
the individual notices it sent to the respondents would be sufficient to bind them to the
conduct of the then opponents (Africas) cross-examination since, to begin with, they
were not even parties to the action. Additionally, we observe that in the notice of the
deposition taking, conspicuously absent was any indication sufficient to forewarn the
notified persons that their inexcusable failure to appear at the deposition taking would
amount to a waiver of their right of cross-examination, without prejudice to the right of
the respondents to raise their objections at the appropriate time.[149] We would be
treading on dangerous grounds indeed were we to hold that one not a party to an action,
and neither in privity nor in substantial identity of interest with any of the parties in the
same action, can be bound by the action or omission of the latter, by the mere expedient
of a notice. Thus, we cannot simply deduce a resultant waiver from the respondents
mere failure to attend the deposition-taking despite notice sent by the petitioner.
Lastly, we see no reason why the Bane deposition could not have been taken earlier in
Civil Case No. 0009 the principal action where it was sought to be introduced while
Bane was still here in the Philippines. We note in this regard that the Philippines was no
longer under the Marcos administration and had returned to normal democratic
processes when Civil Case No. 0009 was filed. In fact, the petitioners notice itself states
that the purpose of the deposition is for Mr. Maurice Bane to identify and testify on the
facts set forth in his Affidavit, which Mr. Bane had long executed in 1991 in Makati,
Metro Manila.[150] Clearly, a deposition could then have been taken - without
compromising the respondents right to cross-examine a witness against them -
considering that the principal purpose of the deposition is chiefly a mode of discovery.
These, to our mind, are avoidable omissions that, when added to the deficient handling
of the present matter, add up to the gross deficiencies of the petitioner in the handling of
Civil Case No. 0009.

After failing to take Banes deposition in 1991 and in view of the peculiar circumstances
of this case, the least that the petitioner could have done was to move for the taking of
the Bane deposition and proceed with the deposition immediately upon securing a
favorable ruling thereon. On that occasion, where the respondents would have a chance
to be heard, the respondents cannot avoid a resultant waiver of their right of cross-
examination if they still fail to appear at the deposition-taking. Fundamental fairness
dictates this course of action. It must be stressed that not only were the respondents
non-parties to Civil Case No. 0130, they likewise have no interest in Africas certiorari
petition asserting his right as an ETPI stockholder.

Setting aside the petitioners flip-flopping on its own representations,[151] this Court can
only express dismay on why the petitioner had to let Bane leave the Philippines before
taking his deposition despite having knowledge already of the substance of what he
would testify on. Considering that the testimony of Bane is allegedly a vital cog in the
petitioners case against the respondents, the Court is left to wonder why the petitioner
had to take the deposition in an incident case (instead of the main case) at a time when
it became the technical right of the petitioner to do so.

V. The petitioner cannot rely on principle of judicial notice

The petitioner also claims that since the Bane deposition had already been previously
introduced and admitted in Civil Case No. 0130, then the Sandiganbayan should have
taken judicial notice of the Bane deposition as part of its evidence.

Judicial notice is the cognizance of certain facts that judges may properly take and act on
without proof because these facts are already known to them.[152] Put differently, it is
the assumption by a court of a fact without need of further traditional evidentiary
support. The principle is based on convenience and expediency in securing and
introducing evidence on matters which are not ordinarily capable of dispute and are not
bona fide disputed.[153]

The foundation for judicial notice may be traced to the civil and canon law maxim,
manifesta (or notoria) non indigent probatione.[154] The taking of judicial notice means
that the court will dispense with the traditional form of presentation of evidence. In so
doing, the court assumes that the matter is so notorious that it would not be disputed.

The concept of judicial notice is embodied in Rule 129 of the Revised Rules on Evidence.
Rule 129 either requires the court to take judicial notice, inter alia, of the official acts of
the x x x judicial departments of the Philippines,[155] or gives the court the discretion
to take judicial notice of matters ought to be known to judges because of their judicial
functions.[156] On the other hand, a party-litigant may ask the court to take judicial
notice of any matter and the court may allow the parties to be heard on the propriety of
taking judicial notice of the matter involved.[157] In the present case, after the petitioner
filed its Urgent Motion and/or Request for Judicial Notice, the respondents were also
heard through their corresponding oppositions.
In adjudicating a case on trial, generally, courts are not authorized to take judicial notice
of the contents of the records of other cases, even when such cases have been tried or
are pending in the same court, and notwithstanding that both cases may have been tried
or are actually pending before the same judge.[158] This rule though admits of
exceptions.

As a matter of convenience to all the parties, a court may properly treat all or any part of
the original record of a case filed in its archives as read into the record of a case pending
before it, when, with the knowledge of, and absent an objection from, the adverse party,
reference is made to it for that purpose, by name and number or in some other manner
by which it is sufficiently designated; or when the original record of the former case or
any part of it, is actually withdrawn from the archives at the court's direction, at the
request or with the consent of the parties, and admitted as a part of the record of the
case then pending.[159]

Courts must also take judicial notice of the records of another case or cases, where
sufficient basis exists in the records of the case before it, warranting the dismissal of the
latter case.[160]

The issue before us does not involve the applicability of the rule on mandatory taking of
judicial notice; neither is the applicability of the rule on discretionary taking of judicial
notice seriously pursued. Rather, the petitioner approaches the concept of judicial notice
from a genealogical perspective of treating whatever evidence offered in any of the
children cases Civil Case 0130 as evidence in the parent case Civil Case 0009 -
or of the whole family of cases.[161] To the petitioner, the supposed relationship of
these cases warrants the taking of judicial notice.

We strongly disagree. First, the supporting cases[162] the petitioner cited are
inapplicable either because these cases involve only a single proceeding or an exception
to the rule, which proscribes the courts from taking judicial notice of the contents of the
records of other cases.[163] Second, the petitioners proposition is obviously obnoxious
to a system of orderly procedure. The petitioner itself admits that the present case has
generated a lot of cases, which, in all likelihood, involve issues of varying complexity. If
we follow the logic of the petitioners argument, we would be espousing judicial
confusion by indiscriminately allowing the admission of evidence in one case, which was
presumably found competent and relevant in another case, simply based on the
supposed lineage of the cases. It is the duty of the petitioner, as a party-litigant, to
properly lay before the court the evidence it relies upon in support of the relief it seeks,
instead of imposing that same duty on the court. We invite the petitioners attention to
our prefatory pronouncement in Lopez v. Sandiganbayan:[164]

Down the oft-trodden path in our judicial system, by common sense, tradition and the
law, the Judge in trying a case sees only with judicial eyes as he ought to know nothing
about the facts of the case, except those which have been adduced judicially in
evidence. Thus, when the case is up for trial, the judicial head is empty as to facts
involved and it is incumbent upon the litigants to the action to establish by evidence the
facts upon which they rely. (emphasis ours)

We therefore refuse, in the strongest terms, to entertain the petitioners argument that
we should take judicial notice of the Bane deposition.

VI. Summation

To recapitulate, we hold that: (1) the Sandiganbayans denial of the petitioners 3rd
motion the Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice
Bane) was a legal error that did not amount to grave abuse of discretion; (2) the
Sandiganbayans refusal to reopen the case at the petitioners instance was tainted with
grave abuse of discretion; and (3) notwithstanding the grave abuse of discretion, the
petition must ultimately fail as the Bane deposition is not admissible under the rules of
evidence.[165]

VII. Refutation of Justice Carpios

Last Minute Modified Dissent

At the last minute, Justice Carpio circulated a modified dissent, quoting the Bane
deposition. His covering note states:

I have revised my dissenting opinion to include the Bane deposition so that the Court
and the public will understand what the Bane deposition is all about. (underlining added)

In light of this thrust, a discussion refuting the modified dissent is in order.

First: Contents of the Bane deposition not an Issue. The dissent perfectly identified what
is at issue in this case i.e., the admissibility of the Bane deposition. Admissibility is
concerned with the competence and relevance[166] of the evidence, whose admission is
sought. While the dissent quoted at length the Bane deposition, it may not be amiss to
point out that the relevance of the Bane deposition (or, to adopt the dissents
characterization, whether Maurice V. Bane is a vital witness) is not an issue here unless
it can be established first that the Bane deposition is a competent evidence.

Second: Misrepresentation of Cited Authority. The dissent insists that in Philippine

Jurisprudence, the consolidation of cases merges the different actions into one and the
rights of the parties are adjudicated in a single judgment, citing Vicente J. Francisco. In
our discussion on consolidation, we footnoted the following in response to the dissents
position, which we will restate here for emphasis:

In the 1966 edition of Vicente J. Franciscos Revised Rules of Court, Francisco wrote:

The effect of consolidation of actions is to unite and merge all of the different actions
consolidated into a single action, in the same manner as if the different causes of actions
involved had originally been joined in a single action, and the order of consolidation, if
made by a court of competent jurisdiction, is binding upon all the parties to the different
actions until it is vacated or set aside. After the consolidation there can be no further
proceedings in the separate actions, which are by virtue of the consolidation
discontinued and superseded by a single action, which should be entitled in such manner
as the court may direct, and all subsequent proceedings therein be conducted and the
rights of the parties adjudicated in a single action (1 C.J.S., 113, pp. 1371-1372).

At the very beginning of the discussion on consolidation of actions in the Corpus Juris
Secundum, the following caveat appears:

The term consolidation is used in three different senses. First, where several actions are
combined into one and lose their separate identity and become a single action in which a
single judgment is rendered; second, where all except one of several actions are stayed
until one is tried, in which case the judgment in the one is conclusive as to the others;
third, where several actions are ordered to be tried together but each retains its separate
character and requires the entry of a separate judgment. The failure to distinguish
between these methods of procedure, which are entirely distinct, the two latter, strictly
speaking, not being consolidation, a fact which has not always been noted, has caused
some confusion and conflict in the cases. (1 C.J.S., 107, pp. 1341-1342) (Emphasis
added).

In defining the term consolidation of actions, Francisco provided a colatilla that the
term consolidation is used in three different senses, citing 1 C.J.S. 1341 and 1 Am. Jur.
477 (Francisco, Revised Rules of Court, p. 348).
From the foregoing, it is clear that the dissent appears to have quoted Franciscos
statement out of context. As it is, the issue of the effect of consolidation on evidence is
at most an unsettled matter that requires the approach we did in the majoritys
discussion on consolidation.[167]

Third: Misappreciation of the Purpose of Consolidation. The dissent then turns to the
purpose of consolidation to expeditiously settle the interwoven issues involved in the
consolidated cases and the simplification of the proceedings. It argues that this can
only be achieved if the repetition of the same evidence is dispensed with.

It is unfortunate that the dissent refuses to recognize the fact that since consolidation is
primarily addressed to the court concerned to aid it in dispatching its official business, it
would be in keeping with the orderly trial procedure if the court should have a say on
what consolidation would actually bring[168] (especially where several cases are
involved which have become relatively complex). In the present case, there is nothing in
the proceedings below that would suggest that the Sandiganbayan or the parties
themselves (the petitioner and the respondents) had in mind a consolidation beyond
joint hearing or trial. Why should this Court which is not a trial court impose a
purported effect that has no factual or legal grounds?

Fourth: The Due Process Consideration. The dissent argues that even if the consolidation
only resulted in a joint hearing or trial, the respondents are still bound by the Bane
deposition considering that they were given notice of the deposition-taking. The issue
here boils down to one of due process the fundamental reason why a hearsay
statement (not subjected to the rigor of cross-examination) is generally excluded in the
realm of admissible evidence especially when read in light of the general rule that
depositions are not meant as substitute for the actual testimony, in open court, of a
party or witness.

Respondent Enrile had a pending Opposition to the notice of deposition-taking

(questioning the reasonableness thereof an issue applicable to the rest of the
respondents) which the Sandiganbayan failed to rule on. To make the Sandiganbayans
omission worse, the Sandiganbayan blindly relied on the petitioners assertion that the
deposition-taking was a matter of right and, thus, failed to address the consequences
and/or issues that may arise from the apparently innocuous statement of the petitioner
(that it intends to use the Bane deposition in Civil Case No. 0009, where only the
respondents, and not Africa, are the parties).[169] There is simply the absence of due
in due process.

Fifth: Misstatement of the Sandiganbayans Action. The dissent repeatedly misstates that
the Sandiganbayan granted the request for the deposition-taking. For emphasis, the
Sandiganbayan did not grant the request since the petitioner staunchly asserted that
the deposition-taking was a matter of right. No one can deny the complexity of the
issues that these consolidated cases have reached. Considering the consolidation of
cases of this nature, the most minimum of fairness demands upon the petitioner to move
for the taking of the Bane deposition and for the Sandiganbayan to make a ruling
thereon (including the opposition filed by respondent Enrile which equally applies to his
co-respondents). The burgeoning omission and failures that have prevailed in this case
cannot be cured by this Court without itself being guilty of violating the constitutional
guarantee of due process.

Sixth: Issues Posed and Resolved Go Beyond Technicalities. The above conclusions,
contrary to the petitioners claim, are not only matters of technicality. Admittedly, rules
of procedure involve technicality, to which we have applied the liberality that technical
rules deserve. But the resolution of the issues raised goes beyond pure or mere
technicalities as the preceding discussions show. They involve issues of due process and
basic unfairness to the respondents, particularly to respondent Enrile, who is portrayed in
the Bane deposition to be acting in behalf of the Marcoses so that these shares should be
deemed to be those of the Marcoses. They involved, too, principles upon which our rules
of procedure are founded and which we cannot disregard without flirting with the
violation of guaranteed substantive rights and without risking the disorder that these
rules have sought to avert in the course of their evolution.

In the Court En Banc deliberations of December 6, 2011, the Court failed to arrive at a
conclusive decision because of a tie vote (7-7, with one Justice taking no part). The same
vote resulted in the re-voting of December 13, 2011. In this light, the ponencia is
deemed sustained.

WHEREFORE, premises considered, we DISMISS the petition for lack of merit. No costs.

SO ORDERED.

Corona, Peralta, Bersamin, Del Castillo, Perez, and Mendoza, JJ., concur.
Carpio, J., see dissenting opinion.
Velasco, Jr., J., join the opinion of J.A.T. Carpio with the qualification that the Bane
desposition cannot be used against resp. Juan Ponce Enrile because of his opposition
hereto.
Leonardo-De Castro, J., no part.
Abad, Villarama, Jr., Sereno, Reyes, and Perlas-Bernabe, JJ., joins the dissent of J. Carpio.

--------------------------------------------------------------------------------
[1] Under Rule 65 of the Rules of Court.

[2] Penned by Associate Justice Rodolfo G. Palattao, and concurred in by Associate

Justices Narciso S. Nario and Nicodemo T. Ferrer; rollo, pp. 60-67.

[3] Fourth Division.

[4] Petitioners Motion to Admit Supplemental Offer of Evidence and

Comment/Opposition Ad Cautelam; rollo, pp. 370-371.

[5] See Republic v. Sandiganbayan, 334 Phil. 475 (1997).

[6] Petitioners Reply; id. at 744-745.

[7] Entitled Victor Africa v. Presidential Commission on Good Government.

[8] See Republic of the Phils. v. Sandiganbayan, 450 Phil. 98, 104 (2003).

[9] Id. at 103.

[10] Id. at 104.

[11] Id. at 103.

[12] Id. at 104-105.

[13] Resolved by this Court on April 30, 2003.

[14] Republic of the Phils. v. Sandiganbayan, supra note 8.

[15] Rollo, p. 304. The other incident cases which were consolidated with the main case
are as follows:

1. Civil Case No. 0043 (Polygon Investors and Managers, Inc. v. PCGG) a complaint
praying that judgment be rendered enjoining the PCGG, its commissioners, officers,
employees, agents and/or representatives from enforcing and/or implementing a writ of
sequestration.
2. Civil Case No. 0044 (Aerocom Investors and Managers, Inc. v. PCGG) a complaint
praying that the Writ of Sequestration dated June 15, 1988 and Mission Order No. MER-
88-20 dated August 1, 1988 be declared null and void ab initio.

3. Civil Case No. 0045 (Africa v. PCGG) an amended complaint praying that judgment
be rendered restraining (a) defendant Eduardo M. Villanueva from representing himself
and acting as Director, President and/or General Manager of ETPI and committing or
continuing to exercise the power, authority and functions appertaining to such office; and
(b) defendant PCGG from directly or indirectly interfering with the management of ETPI.

4. Civil Case No. 0047 (Africa v. Gutierrez, et al.) a complaint praying that defendants
be enjoined from acting as directors of ETPI.

5. Civil Case No. 0131 (Traders Royal Bank v. PCGG, Africa, et al.) complaint praying
that defendants be ordered to interplead and litigate their conflicting claims.

6. Civil Case No. 0139 (Far East Bank and Trust Company v. PCGG, Africa, et al.) a
complaint praying that defendants be directed to interplead and litigate their respective
claims on the proceeds of the deposit accounts maintained with plaintiff and that
judgment be accordingly rendered.

7. Civil Case No. 0143 (Standard Chartered Bank v. PCGG, Africa, Nieto, et al.) a
complaint praying that judgment be rendered requiring all the defendants to interplead
among themselves and litigate to determine who are the legitimate signatories of OWNI
in its accounts with the plaintiff.

8. Civil Case No. 0128 (Traders Royal Bank v. PCGG) a complaint praying that
defendants be directed to interplead and litigate their conflicting claims between them,
and that judgment be rendered accordingly.

9. Civil Case No. 0106 (Domestic Satellite Philippines, Inc. v. PCGG and Asset
Privatization Trust) a petition praying that PCGG be ordered to withdraw its objection to
the alleged settlement agreed upon between DOMSAT and APT.

10. Civil Case No. 0114 (PHILCOMSAT and POTC v. PCGG) a complaint seeking to
declare as null and void the writs of sequestration issued by PCGG over plaintiffs-
corporations and to enjoin PCGG and its officers, agents, and nominees from interfering
with the management and operations of the plaintiffs-corporations. (Records, Volume III,
pp. 451-452; 841-843.)

[16] Resolution dated December 13, 1996; id. at 300.

[17] Ibid.

[18] Petitioner sent to the respondents a Notice to Take Oral Deposition of Mr. Maurice V.
Bane dated August 30, 1996, pursuant to Section 1, Rule 24 of the Revised Rules of Court
(Records, Volume XXXVI, pp. 11534-11535), which the Sandiganbayan noted.
Considering Victor Africas manifestation, among others, that he was not available on the
previously scheduled dates, on September 25, 1996, the petitioner filed and sent a
Second Amended Notice to Take Deposition of Mr. Maurice V. Bane upon Oral
Examination (Rollo, pp. 68-71). The Second Amended Notice reads:

The right to take deposition de bene esse is a precautionary privilege to prevent [the]
loss of evidence in the event the attendance of the witness at the trial cannot be
procured. Hence, Section 1, Rule 24 of the Revised Rules of Court, specifically grants the
plaintiff the right to depose Mr. Maurice Bane without leave of court. x x x.

It should moreover be noted that Mr. Maurice Bane, who resides in England, has resigned
from Cable and Wireless and is unable to travel to Manila to attend or testify before this
Honorable Court. Section 4, Rule 24, allows Plaintiff to use Mr. Maurice V. Banes
proposed deposition in evidence insofar as the same may be admissible under the Rules
of Evidence. (underscoring and boldfacing supplied)

[19] Rollo, pp. 292-297.

[20] Id. at 68-69. The records show that Maurice Bane executed the aforesaid affidavit
dated January 1991 in Makati, Metro Manila, Philippines. Records, Volume III, pp. 683-
688.

[21] Id. at 69.

[22] Id. at 299-321.

[23] Republic of the Phils. v. Sandiganbayan, supra note 8, at 109.

[24] Resolved by this Court on April 30, 2003.

[25] Sandiganbayan Third Division Pre-Trial Order dated March 17, 1997, p. 1; rollo, p.
576. Penned by Associate Justice Sabino R. de Leon, Jr., and concurred in by Associate
Justices Cipriano A. del Rosario and Leonardo I. Cruz.

[26] Records, Volume XXXVI, p. 11405.

[27] Dated January 21, 1998; id. at 322-329. Originally, what the petitioner filed was a
Manifestation that it was adopting the testimonies of specified witnesses, among others.
However, on January 8, 1998, the Sandiganbayan required the petitioner to file a
corrected pleading in the form of a motion in lieu of the Manifestation. (Records, Volume
XLIV, pp. 128-130, 175).

[28] Civil Case Nos. 0048, 0050 and 0146 were ordered consolidated with Civil Case No.
0009 by the Court in Africa v. PCGG, G.R. Nos. 83831, 85594, 85597, and 85621, January
9, 1992, 205 SCRA 38.

[29] Records, Volume XLIV, pp. 278-282 and 497-500; Volume XLV, pp. 3-6 and 22-26.

[30] Dated March 13, 1998; Rollo, pp. 593-597.

[31] Fourth Division.

[32] Penned by Associate Justice Sabino R. de Leon, Jr., and concurred in by Associate
Justices Narciso S. Nario and Teresita J. Leonardo-de Castro (now a Member of this Court);
rollo, pp. 331-338.

[33] Id. at 18.

[34] Id. at 339-346.

[35] Penned by Associate Justice Rodolfo G. Palattao, and concurred in by Associate

Justices Narciso S. Nario and Nicodemo T. Ferrer; id. at 352-355.

[36] Id. at 777-778.

[37] Id. at 357-359.

[38] Id. at 360-368.

[39] The Sandiganbayan (Fourth Division) promulgated on April 1, 2003 a resolution

denying the demurrers to evidence filed by the respondents; id. at 777-790.

[40] Supra note 2.

[41] Represented by the Office of the Solicitor General. While this case was pending,
then Chief Presidential Legal Counsel Eduardo Antonio Nachura was appointed Solicitor
General, formerly a Member of this Court.

[42] Rollo, p. 28, citing People v. MTC of Quezon City, 333 Phil. 500 (1996).

[43] Id. at 35-50.

[44] In his Manifestation, respondent Ferdinand R. Marcos, Jr. stated that he was adopting
the Comment of respondent Nieto; id. at 856-857. On the other hand, respondent Juan
Ponce Enrile and the substituted heirs of respondent Jose Africa merely reiterated the
arguments advanced by respondent Nieto.

[45] Id. at 471.

[46] Section 4, Rule 65 of the Rules of Court reads:

When and where petition filed. The petition shall be filed not later than sixty (60) days
from notice of the judgment, order or resolution. In case a motion for reconsideration or
new trial is timely filed, whether such motion is required or not, the sixty (60) day period
shall be counted from notice of the denial of said motion.

[47] Respondent Nietos Comment, citing GSIS v. CA, 334 Phil. 163 (1997); rollo, p. 490.

[48] Respondent Nietos Comment, citing Vicente J. Francisco, The Revised Rules of Court
in the Philippines, p. 338; id. at 489.

[49] Id. at 521-528.

[50] Petitioners Reply (to Nietos Comment), citing Regalado, Remedial Law
Compendium, p. 582, 2001 ed.; id. at 522.

[51] Raymundo v. Isagon Vda. de Suarez, G.R. No. 149017, November 28, 2008, 572
SCRA 384.

[52] Investments, Inc. v. Court of Appeals, 231 Phil. 302 (1987), cited in Denso (Phils.),
Inc. v. Intermediate Appellate Court, 232 Phil. 256 (1987).

[53] Rudecon Management Corp. v. Singson, 494 Phil. 581 (2005).

[54] Tomacruz-Lactao v. Espejo, 478 Phil. 755 (2004).

[55] Jose Y. Feria and Maria Concepcion Noche, 2 Civil Procedure Annotated, 2001 ed., pp.
151-152, citing Manila Electric Co. v. Artiaga and Green, 50 Phil. 144, 147 (1927). This
proceeds from the court's inherent power to control its process and orders so as to make
them conformable to law and justice. The only limitation is that the judge cannot act with
grave abuse of discretion, or that no injustice results thereby (Bangko Silangan
Development Bank v. Court of Appeals, 412 Phil. 755 [2001]).

[56] Rule 41, Section 1 of the Rules of Court reads:

Subject of appeal. An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these
Rules to be appealable. No appeal may be taken from:

xxxx

(c) An interlocutory order;

xxxx

In all the above instances where the judgment or final order is not appealable, the
aggrieved party may file an appropriate special civil action under Rule 65.

[57] Rollo, p. 31, citing Philgreen Trading Construction Corp. v. Court of Appeals, 338 Phil.
433 (1997).

[58] Indiana Aerospace University v. Commission on Higher Education, 408 Phil. 483
(2001).

[59] Africa v. Hon. Sandiganbayan, 350 Phil. 846 (1998).

[60] When a deposition is presented at trial and admitted by the court, it is competent
evidence for the party in whose behalf it was taken, although it may not have been
actually read when introduced in evidence. (Vicente J. Francisco, 2 The Revised Rules of
Court in the Philippines, p. 127, 1966, citing Baron v. David, 51 Phil. 1 [1927].)

[61] Section 34, Rule 132 of the Rules of Court reads:

Offer of evidence. The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified.

[62] Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010, 615 SCRA 619, 633,
citing Dueas, Jr. v. House of Representatives Electoral Tribunal, G.R. No. 185401, July 21,
2009, 593 SCRA 316, 344.

[63] Republic of the Philippines v. Sandiganbayan, 453 Phil. 1059 (2003).

[64] Section 6, Rule 18 of the Rules of Court requires the parties to state in their
respective Pre-Trial Briefs the following:

(a) A statement of their willingness to enter into amicable settlement or alternative

modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves of
discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective
testimonies.

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-
trial. (emphases added)

[65] Section 1, Rule 131 of the Rules of Court reads:

Burden of proof. Burden of proof is the duty of a party to present evidence on the facts
in issue necessary to establish his claim or defense by the amount of evidence required
by law. (emphasis added)

[66] See Manuel V. Moran, 2 Comments on the Rules of Court, 1996 ed., p. 140.

[67] Section 1, Rule 33 of the Rules of Court reads:

Demurrer to evidence. After the plaintiff has completed the presentation of his
evidence, the defendant may move for dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the
right to present evidence. If the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence. (emphasis
added)

[68] Petitioners Urgent Motion and/or Request for Judicial Notice, p. 3; rollo, p. 341.

[69] Petitioners Motion to Admit Supplemental Offer of Evidence, p. 6; id. at 365.

[70] Section 4, Rule 129 of the Rules of Court reads:

Judicial admissions. An admission, verbal or written, made by the party in the course of
the proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or that no such
admission was made.

[71] In page 6 of the petitioners Motion to Admit Supplemental Offer of Evidence, the
petitioner admitted the termination of the presentation of its evidence; yet, in page 4 of
the petitioners Reply (to respondent Nietos opposition to petitioners Motion to Admit
Supplemental Offer of Evidence), the petitioner stated that it has not yet rested its case.

[72] Dated August 21, 2000 and April 3, 2001.

[73] Rollo, pp. 31 and 34.

[74] James M. Henderson, 6 Commentaries on the Law of Evidence in Civil Cases Based
Upon the Works of Burr W. Jones, 2502, pp. 4950-4951.

[75] Director of Lands v. Roman Archbishop of Manila, 41 Phil. 121 (1920).

[76] Ibid.

[77] John Henry Wigmore, 6 A Treatise on the Anglo-American System of Evidence in

Trials at Common Law, 1940, p. 519.

[78] Director of Lands v. Roman Archbishop of Manila, supra note 75.

[79] Seares v. Hernando, etc., et al., 196 Phil. 487 (1981).

[80] 88 C.J.S. 104, p. 217; 5A C.J.S. 1606, p. 102; and Lopez v. Liboro, 81 Phil. 431
(1948).

[81] Land Bank of the Philippines v. Court of Appeals, 456 Phil. 755 (2003).

[82] San Fernando Rural Bank, Inc. v. Pampanga Omnibus Development Corporation, G.R.
No. 168088, April 4, 2007, 520 SCRA 564.

[83] Leviste v. Court of Appeals, supra note 62.

[84] Supra note 80, at 434.

[85] Supra note 75, at 124.

[86] Manuel V. Moran, supra note 66, at 141, citing 64 C.J. 160-163.

[87] In Hampson v. Taylor (8 A. 331, 23 A. 732, 15 R.I. 83, January 11, 1887) the Rhode
Island Supreme Court ruled:

We are of the opinion that it was entirely within the discretion of the court to open the
case for further testimony. The counsel for the plaintiff says, in excuse for the omission,
that it was conceded at the former trial, without contest, that the place of the accident
was a part of the public highway, and he was thus put off his guard. It is quite common
for the court to allow a party to submit further testimony, after he has rested, when his
opponent attempts to take advantage of some formal point which has been inadvertently
overlooked, since it is or ought to be the aim of the court, in ordering the course of proof,
to further, not to defeat the ends of justice.

[88] Rollo, p. 18.

[89] Republic of the Philippines v. Sandiganbayan, 336 Phil. 304 (1997).

[90] In W. W. Dearing v. Fred Wilson & Co., Inc., 187 Phil. 488, 493-494 (1980), we held:

Anent grave abuse of discretion, in Icutanim v. Hernandez, x x x it was held that appeal
and not certiorari, is the proper remedy for the correction of any error as to the
competency of a witness committed by an inferior court in the course of trial, since such
a situation involves an error of law constituting a violation of the rules of evidence, apart
from the fact that to allow any special civil action under the circumstances would lead to
multiplicity of suits and lead to protracted if not endless trials. Similarly and for the same
reasons, that rule would apply to the admission or rejection of a deposition being offered
as evidence. Thus, the jurisprudential rule is that the admission or rejection of certain
interrogatories in the course of discovery procedure could be an error of law but not an
abuse of discretion, much less a grave one. Again, the reason for this rule [is that] the
procedure for the taking of depositions whether oral or thru written interrogatories is
outlined in the rules leaving no discretion to the Court to adopt any other not
substantially equivalent thereto. Should the judge substantially deviate from what the
rule prescribes, he commits a legal error, not an abuse of discretion. (citation omitted;
emphases and underscoring ours)

[91] Petitioners Reply to the Opposition (filed by the substituted heirs of respondent Jose
Africa), p. 7; rollo, p. 462.

[92] Section 9 of Presidential Decree 1606, in effect at the time of the consolidation,
provides:

Rule-making Power. The Sandiganbayan shall have the power to promulgate its own rules
of procedure and, pending such promulgation, the Rules of Court shall govern its
proceedings. [93] 1964 Rules of Court. This provision was copied verbatim under the
present rules.

[94] This provision, in turn, is an exact reproduction of Rule 42(a) of the 1938 Federal
Rules of Civil Procedure of the United States.

[95] Wright and Miller, Federal Practice and Procedure: Civil 2d 2381, p. 427.

[96] See People v. Sandiganbayan, 456 Phil. 707 (2003); Cojuangco, Jr. v. Court of
Appeals, G.R. No. 37404, November 18, 1991, 203 SCRA 619; Caos v. Hon. Peralta, etc.,
et al., 201 Phil. 422 (1982).

[97] Wright and Miller, supra note 95, at 429.

[98] 1 C.J.S. 107, p. 1341; Wright and Miller, Federal Practice and Procedure: Civil 2d
2382.

[99] 1 C.J.S. 107, id.; Wright and Miller, id. at 429. See Yu, Sr. v. Basilio G. Magno
Construction and Development Enterprises, Inc., G.R. Nos. 138701-02, October 17, 2006,
504 SCRA 618.

[100] 1 C.J.S. 107, id.; 1 Am. Jur. 2d 131, p. 804; Wright and Miller, id.

[101] The April 15, 1993 Resolution ordering consolidation reads:

Submitted for resolution is the Motion for Consolidation, dated June 22, 1992, filed by the
Republic of the Philippines (represented by the PCGG), counsel.

The record shows that there is no opposition in the above-entitled cases to the said
motion. It also appears that the subject matters of the above entitled cases are and/or
may be treated as mere incidents in Civil Case No. 0009.

WHEREFORE, the above-entitled cases are hereby ordered consolidated with Civil Case
No. 0009, and shall henceforth be consolidated and treated as mere incidents of said
Civil Case No. 0009. (Records, Volume III, pp. 843-844.)

[102] See Victor Africas Motion (Records, Volume XVIII, pp. 6717-6722).

[103] In its Motion for Consolidation, the petitioner argued:

4. On various dates, several actions were filed which are intimately related with Civil
Case No. 0009, involving as they are the same subject matter and substantially the same
parties x x x.

xxxx

10. Besides, the present Motion for Consolidation is not without a paradigm which was
recently sketched by [the Sandiganbayan]. During the hearing on April 6, 1992 of Africa
vs. PCGG, docketed as Civil Case No. 0127, [the Sandiganbayan] resolved to conduct a
joint trial of the said case and of OWNI vs. Africa, docketed as Civil Case No. 0126,
inasmuch as both cases are intimately related. The consolidation of the above-captioned
cases would be merely a step in the same direction already taken by [the
Sandiganbayan] in Africa and OWNI. (Records, Volume XV, pp. 5617-5622.)

[104] In the 1966 edition of Vicente J. Franciscos Revised Rules of Court, Francisco wrote:

The effect of consolidation of actions is to unite and merge all of the different actions
consolidated into a single action, in the same manner as if the different causes of actions
involved had originally been joined in a single action, and the order of consolidation, if
made by a court of competent jurisdiction, is binding upon all the parties to the different
actions until it is vacated or set aside. After the consolidation there can be no further
proceedings in the separate actions, which are by virtue of the consolidation
discontinued and superseded by a single action, which should be entitled in such manner
as the court may direct, and all subsequent proceedings therein be conducted and the
rights of the parties adjudicated in a single action (1 C.J.S., 113, pp. 1371-1372).

At the very beginning of the discussion on consolidation of actions in the Corpus Juris
Secundum, the following caveat appears:

The term consolidation is used in three different senses. First, where several actions are
combined into one and lose their separate identity and become a single action in which a
single judgment is rendered; second, where all except one of several actions are stayed
until one is tried, in which case the judgment in the one is conclusive as to the others;
third, where several actions are ordered to be tried together but each retains its separate
character and requires the entry of a separate judgment. The failure to distinguish
between these methods of procedure, which are entirely distinct, the two latter, strictly
speaking, not being consolidation, a fact which has not always been noted, has caused
some confusion and conflict in the cases. (1 C.J.S., 107, pp. 1341-1342) (Emphasis
added).
In defining the term consolidation of actions, Francisco provided a colatilla that the
term consolidation is used in three different senses, citing 1 C.J.S. 1341 and 1 Am. Jur.
477 (Francisco, Revised Rules of Court, p. 348).

[105] The respondents vigorously opposed the petitioners motion to adopt the
testimony of, among others, Maurice Bane, and the Sandiganbayan ruled in favor of the
respondents, without the petitioner questioning this development until after two years
later. This circumstance cannot be taken lightly in view of the petitioners gross
procedural deficiency in the handling of this main case.

[106] In those cases where the Court ordered or affirmed the order of consolidation, even
without expressly providing for the admissibility of evidence in all of the consolidated
cases, the parties are the same and/or the issues are relatively simple and/or the causes
of action could have actually been stated in one complaint (see Domdom v. Third and
Fifth Divisions of the Sandiganbayan, G.R. Nos. 182382-83, February 24, 2010, 613 SCRA
528; Active Wood Products Co., Inc. v. Court of Appeals, G.R. No. 86603, February 5,
1990, 181 SCRA 774; Delta Motor Sales Corporation v. Mangosing, No. L-41667, April 30,
1976, 70 SCRA 598; Sideco v. Paredes, et al., 74 Phil. 6 (1942).

[107] Dated March 17, 1997; rollo, pp. 576-587.

[108] Under Section 7, Rule 18 of the Rules of Court, a Pre-Trial Order controls the
subsequent course of the action, unless modified before trial to prevent manifest
injustice.

[109] Records, Volume XXXVI, p. 11405.

[110] 1964 Rules of Court, Rule 24, Depositions and Discovery.

[111] Petitioners Reply with Manifestation to Respondent Enriles Comment, pp. 12-13;
rollo, pp. 679-680.

[112] Records, Volume XLV, pp. 110-112. Petitioners Common Reply reads:

1. While it is true that Section 47, Rule 130 of the Rules of Court provides:

xxxx

[petitioner] wishes to inform this Honorable Court that in order to substantially comply
with the aforementioned requirements, it would be willing to present subject witnesses,
except for Maurice Bane and Rolando Gapud whose availability are difficult to obtain
being foreign residents, only to be cross-examined by the defendants who had no
opportunity to cross-examine them in said previous proceeding.

[113] Dasmarias Garments, Inc. v. Reyes, G.R. No. 108229, August 24, 1993, 225 SCRA
622.

[114] Jonathan Landoil International Co., Inc. v. Mangudadatu, G.R. No. 155010, August
16, 2004, 436 SCRA 559, 573, citing Fortune Corporation v. CA, G.R. No. 108119, January
19, 1994, 229 SCRA 355, 362.

[115] Dasmarias Garments, Inc. v. Reyes, supra note 113.

[116] Ibid.

[117] Ibid.

[118] Jovito R. Salonga, Philippine Law of Evidence, p. 540, 2nd ed., 1958. John Henry
Wigmore, supra note 77, at 51-53. But the generally accepted view, followed by our own
rules on evidence, is that prior testimony or deposition is an exception to hearsay
prohibition. (McCormick on Evidence by Edward Cleary, 254, p. 759, 3rd ed., Hornbook
Series, Lawyers ed., 1984).

[119] Section 6, Rule 132 of the Rules of Court reads:

Cross-examination; its purpose and extent. Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to any matters
stated in the direct examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue.

[120] John Henry Wigmore, supra note 77, at 83.

[121] Oscar M. Herrera, 5 Remedial Law, 1999, pp. 773, 774-775.

[122] Id. at 773, citing Gibson v. Gagnon, 82 Colo 108, 257, p. 348; 2 Jones, Sec. 9:25.

[123] Manuel V. Moran, 5 Comments on the Rules of Court, 1980 ed., p. 409.

[124] Vicente J. Francisco, Evidence, 1955, p. 646.

[125] Ricardo J. Francisco, 7 The Revised Rules of Court in the Philippines, Evidence, Part
I, 1997 ed., pp. 628-629.

[126] Prior to the revision of the rules on evidence, the phrase out of the Philippines
appeared in the context of the witness unavailability (Section 41, Rule 130 of the 1964
Rules of Court). After the revision (the latest amendments to the rules on evidence
became effective on July 1, 1989), this phrase was deleted from the present Section 47,
Rule 130 of the Rules of Court. In contrast, the same phrase, which appeared in Rule 24
of the old Rules (Rule 24, Deposition and Discovery, 1964 Rules of Court), was retained in
the present Rule 23 of the Rules of Court on depositions. The phrase unable to testify,
however, survived the amendment of the rules and was retained in both Section 47, Rule
130 of the Rules of Court and Section 4(c), Rule 23 of the same Rules.

[127] Vicente J. Francisco, Evidence, supra note 124, at 649.

[128] John Henry Wigmore, 5 A Treatise on the Anglo-American System of Evidence in

Trials at Common Law, 1404, p. 149.

[129] Northwest Airlines, Inc. v. Cruz, 376 Phil. 96 (1999).

[130] Ricardo J. Francisco, supra note 125, at 627, cited in the Comment filed by the
substituted heirs of respondent Jose Africa, p. 3.

[131] John Henry Wigmore, supra note 128, at 148.

[132] To make matters worse, by not questioning the Sandiganbayans denial of its 1st
Motion (to Adopt), the petitioner has impliedly acceded to the Sandiganbayans ruling
that the non-presentation of the deponent in court for cross-examination is unjustified.
Unfortunately, the petitioner realized its mistake only two precious years later.

[133] Ricardo J. Francisco, supra note 125, at 220.

[134] Id. at 219.

[135] Edward Cleary, supra note 118, at 48.

[136] Manuel V. Moran, supra note 123, at 410.

[137] Jovito R. Salonga, supra note 118, at 542.

[138] Oscar M. Herrera, supra note 121, at 772. Privies are distributed into several
classes, according to the manner of the relationship. Thus, there are privies in estate, as
donor and donee, lessor and lessee, and joint tenants; privies in blood, as heir and
ancestor; privies in representation as executor and testator, administrator and intestate;
privies in law for the law without privity of blood and estate casts the land upon another
as by escheat. (Id. at 542.)

[139] Notably, Africa was not impleaded in Civil Case No. 0009 (Republic v.
Sandiganbayan, G.R. No. 106244, January 22, 1997, 266 SCRA 515).

[140] Petitioners Reply to Nietos Comment, p. 4; and petitioners Reply with

Manifestation to Respondent Enriles Comment, pp. 11-12. Rollo, pp. 678-679.

[141] Records, Volume XXXVI, p. 11534.

[142] Records, Volume XXXVI, pp. 11574-11578; Volume XXXVII, pp. 11649- 11654;
11704-11709.

[143] Records, Volume XXXVI, pp. 11610-11612.

[144] Records, Volume XXXVII, pp. 11719-11720.

[145] While the Sandiganbayan recognized that the petitioner intends to use the Bane
deposition in Civil Case No. 0009 (as stated in the Second Amended Notice of the Taking
of the Bane Deposition), the Sandiganbayan denied Africas Motion as if Africa himself
was impleaded in and is a party who can be bound by the proceedings and the judgment
in Civil Case No. 0009 (except only as a substituted heir of the late respondent Jose
Africa). In denying Victor Africas motion (forgetting about the concern raised by
respondent Enrile which is equally applicable to the other respondents), the
Sandiganbayan seemed oblivious of the fact that the respondents who were non-parties
to Civil Case 0130 (where the deposition was taken) should be heard. Apparently, the
Sandiganbayan relied blindly on the petitioners assertion that the taking of deposition is
a matter of right and failed to address the consequences and/or issues that may arise
from the apparently innocuous statement that the petitioner intends to use the Bane
deposition in Civil Case No. 0009 (where only the respondents, and not Africa, are
parties). The Sandiganbayan ruled:

More importantly, under Section 1 of Rule 24 the taking of such deposition, after the
answer has been served, is a matter of right and can be resorted to without leave of
court. (Records, XXXVII, pp. 11719-11720)

[146] 376 Phil. 111-112 (1999).

[147] In its Motion for Summary Judgment, dated January 28, 1997, the petitioner itself
conceded that respondents are not parties to Civil Case No. 0130, where the deposition
was taken:

7. In this connection, we are not unmindful of the observation of [the Sandiganbayan]

that:

The principal issue in the main case, Civil Case No. 0009 x x x which is an action for
reversion, forfeiture, accounting and damages, is whether or not there is preponderance
of evidence that the Class A shareholding in ETPI is ill-gotten wealth x x x. That point
should not be pre-empted in the resolution of the subject incident in G.R. No. 107789 x x
x
8. Nor are we unmindful that this Honorable Court made clear that the finding in its
December 13, 1996 resolution does not render moot and academic the principal issue in
the main case, Civil Case No. 0009, which is: whether or not there is preponderance of
evidence of alleged ill-gotten wealth of the defendants therein, especially Jose Africa,
Roberto S. Benedicto and Manuel H. Nieto, Jr., none of whom is a party either in incident
Civil Case No. 0130 or in the subject G.R. No. 107789. (Italics supplied) (Records, XL, pp.
12568-12569.)

[148] Mabayo Farms, Inc. v. Court of Appeals, G.R. No. 140058, August 1, 2002, 386
SCRA 110; and Development Bank of the Philippines v. Bautista, et al., 135 Phil. 201
(1968).

[149] Section 6, Rule 23 of the Rules of Court reads:

Objections to admissibility. Subject to the provisions of section 29 of this Rule,

objection may be made at the trial or hearing to receiving in evidence any deposition or
part thereof for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.

Section 17, Rule 23 of the Rules of Court reads:

Record of examination; oath; objections. The officer before whom the deposition is to
be taken shall put the witness on oath and shall personally, or by someone acting under
his direction and in his presence, record the testimony of the witness. The testimony
shall be taken stenographically unless the parties agree otherwise. All objections made
at the time of the examination to the qualifications of the officer taking the deposition, or
to the manner of taking it, or to the evidence presented, or to the conduct of any party,
and any other objection to the proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to the objections. In lieu of
participating in the oral examination, parties served with notice of taking a deposition
may transmit written interrogatories to the officers, who shall propound them to the
witness and record the answers verbatim.

[150] Records, Volume XXXVII, pp. 11628-11623.

[151] See the petitioners Pre-Trial Brief (Records, Volume XXXVI, p. 11405) where the
petitioner made a representation to present Mr. Maurice Bane. See the petitioners
Common Reply (Records, Volume XLV, pp. 110-112) where the petitioner conceded the
applicability of Section 47, Rule 130; see the petitioners Motion for Summary Judgment
(Records, Volume XL, pp. 12568-12569) where the petitioner admitted that the
respondents were not parties to Civil Case No. 0130 (where the deposition was taken)
and Victor Africa was neither a party to Civil Case No. 0009.

[152] Ricardo J. Francisco, supra note 125, at 69.

[153] Oscar M. Herrera, supra note 121, at 72.

[154] Manifest things require no proof; what is known by the magistrate need not be
proved; Jovito R. Salonga, supra note 118, at 45; and Eduardo B. Peralta, Jr., Perspectives
of Evidence, 2005, p. 52, citing 1 Jones on Evidence, p. 209.

[155] Section 1, Rule 129 of the Revised Rules on Evidence.

[156] Id., Section 2.

[157] Id., Section 3.

[158] Manuel V. Moran, supra note 123, at 47-48, citing Municipal Council of San Pedro
Laguna v. Colegio de San Jose, 65 Phil. 318 (1938); and Prieto v. Arroyo, 121 Phil. 1335
(1965).
[159] In Occidental Land Transportation Co., Inc. v. Court of Appeals, G.R. No. 96721,
March 19, 1993, 220 SCRA 167, 176, citing Tabuena v. Court of Appeals, 196 SCRA 656
(1991), we stated:

And unlike the factual situation in Tabuena v. CA, the decision in Civil Case No. 3156
formed part of the records of the instant case (Civil Case No. 2728) with the knowledge
of the parties and in the absence of their objection. This fact was pointed out by the
lower court, to wit:

The x x x findings of the Oroquieta Court became as conclusive upon the company and
its driver by their acquiescence and silence x x x. (Decision of lower court, p. 12; records,
p. 239)

xxxx

Returning to Exhibit "O," supra (Decision, Civil Case No. 3156, CFI, Branch III, Oroquieta
City), the Court hastens to add: Said exhibit has not been objected to nor commented
upon by the defendants Company and Enerio, through their counsel, x x x.

This being the case, petitioners were aware that Exhibit "O" (Decision in Civil Case No.
3156) had formed part of the records of the case and would thereby be considered by
the trial court in its decision.

[160] Section 1, Rule 9 of the Rules of Court reads:

Defenses and objections not pleaded. - Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. However, when it appears from
the pleadings or the evidence on record that the court has no jurisdiction over the
subject matter, that there is another action pending between the same parties for the
same cause, or that the action is barred by a prior judgment or by statute of limitations,
the court shall dismiss the claim. (underscoring ours)

In Lewin v. Galang, etc., 109 Phil. 1041, 1045 (1960), cited by the petitioner, the Court
held:

In view of this special defense [res judicata], the court below should have taken judicial
notice of the habeas corpus proceedings instituted by petitioner before the same Court
of First Instance of Manila and before the same judge, Case No. 28409, Ted Lewin v.
Commissioner of Immigration and Commissioner of Customs, and we find that practically
the same facts relied upon in petitioner's present petition for declaratory judgment are
the very facts upon which petitioner based his request for the issuance of the writ of
habeas corpus in the previous case.

In Tiburcio, et al. v. Peoples Homesite and Housing Corporation, et al., 106 Phil. 477,
483-484 (1959), likewise cited by the petitioner, we held:

Appellants finally claim that the lower court erred in dismissing the complaint on the
ground of res judicata by taking judicial notice of its own records in Land Registration
Case No. L-3 invoking in support of their contention the principle that a court cannot take
judicial notice of the contents of the records of other cases even when such cases had
been tried by the same court and notwithstanding the [fact] that both cases may have
been tried before the same judge. While the principle invoked is considered to be the
general rule, the same is not absolute. There are exceptions to this rule. Thus, as noted
by former Chief Justice Moran:

In some instance[s], courts have taken judicial notice of proceedings in other causes,
because of their close connection with the matter in controversy. x x x
Moreover, appellants' objection to the action of the trial court on this matter is merely
technical because they do not dispute the fact that appellant x x x, who instituted the
present case, is the same person who filed the application in Land Registration Case No.
L-3 for the registration of the same parcel of land which application was denied by the
court x x x. It may therefore be said that in the two cases there is not only identity of
subject matter but identity of parties and causes of action. Indeed, the trial court did not
err in dismissing the complaint on the ground of res judicata.

[161] Petitioners Reply with Manifestation (to respondent Enriles Comment) enumerates
the various family member cases which arose from the present and main case, Civil
Case No. 0009.

[162] De los Angeles v. Hon. Cabahug, et al., 106 Phil. 839 (1959); Lewin v. Galang, etc.,
supra note 160; and Tiburcio, et al. v. Peoples Homesite and Housing Corporation, et al.,
supra note 160.

[163] Lewin v. Galang, etc., supra; and Tiburcio, et al. v. Peoples Homesite and Housing
Corporation, et al., supra.

[164] 319 Phil. 387, 389 (1995).

[165] Rules of Court, Rule 130, Section 47.

[166] Revised Rules on Evidence, Rule 128, Section 3.

[167] The dissent then compares the proceedings in the Court when cases are
consolidated to support its position that consolidation results in the merger of the
different causes of action. However, it is not exactly appropriate to compare the
consolidation of cases in the Supreme Court with the consolidation ordered by the
Sandiganbayan because the Supreme Court is NOT a trier of facts. First, the scope of our
review is limited generally to questions of law. Hence, no issue of prejudice to other
parties can arise should petitions in the Court be consolidated. Second, unlike
consolidated cases in the Supreme Court, the Sandiganbayan itself had, in fact,
separately adjudged an incident of Civil Case No. 0130 and the few other incident cases
independent of Civil Case No. 0009.

[168] Correctible under Rule 65 of the Rules of Court.

[169] When it denied Africas separate opposition.

--------------------------------------------------------------------------------

DISSENTING OPINION

CARPIO, J.:

This is a special civil action for certiorari[1] filed by the Republic of the Philippines
(petitioner), through the Presidential Commission on Good Government (PCGG), seeking
to set aside the Resolution dated 7 February 2002 of the Sandiganbayan, which denied
petitioners Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice V.
Bane).

The case pertains to the complaint filed before the Sandiganbayan by petitioner against
private respondents for reconveyance, reversion, accounting, restitution, and damages.
The complaint, which was filed on 22 July 1987, was docketed as Civil Case No. 0009.
Civil Case No. 0009 involves, among others, the shares of private respondents in Eastern
Telecommunications Philippines, Inc. (ETPI), which were allegedly ill-gotten and were
eventually sequestered by the government.[2]

The issue in this certiorari proceeding concerns the admissibility of the deposition of
Maurice V. Bane, taken primarily for testimony regarding the interlocutory issue in Civil
Case No. 0130, which is one of the incident cases of Civil Case No. 0009.

Civil Case No. 0130 is a petition for certiorari filed with the Sandiganbayan by Victor
Africa, son of Jose L. Africa,[3] who is one of the defendants in Civil Case No. 0009,
against the PCGG. Victor Africa filed the petition, seeking to nullify the PCGG orders
directing him, among others, to account for his sequestered shares in ETPI. In a
Resolution dated 12 April 1993,[4] the Sandiganbayan ordered the consolidation of the
main case, Civil Case No. 0009, with several incident cases including Civil Case No. 0130.
[5]

On 25 September 1996, in Civil Case No. 0009 in connection with Incident Case No. 0130
and G.R. No. 107789, petitioner filed with the Sandiganbayan a Second Amended Notice
to Take Deposition of Mr. Maurice V. Bane Upon Oral Examination.[6] On 23 and 24
October 1996, the deposition upon oral examination of Maurice V. Bane, former director
and treasurer-in trust of ETPI, was taken before Consul General Ernesto Castro at the
Philippine Embassy in London, England. Among the defendants in the main Civil Case No.
0009, only Victor Africa appeared during the taking of the deposition.

On 22 January 1998, petitioner filed a motion[7] praying that it be allowed to adopt the
testimonies of several of its witnesses in incidental Civil Case Nos. 0048, 0050, 0130 and
0146, including the deposition of Maurice V. Bane, as its evidence in the main case, Civil
Case No. 0009. On 1 April 1998, the Sandiganbayan issued a Resolution, denying in part
the motion as regards the adoption of the testimony on oral deposition of Maurice V.
Bane (and Rolando Gapud) as part of petitioners evidence in Civil Case No. 0009, for
the reason that said deponents according to the plaintiff, are not available for cross
examination in this Court by the defendants.[8]

On 14 December 1999, petitioner made its Formal Offer of Evidence consisting of

Exhibits A to XX-27. However, through oversight, petitioner failed to include among
its exhibits the deposition of Maurice V. Bane. Thus, in its Urgent Motion And/Or Request
for Judicial Notice dated 21 February 2000, petitioner prayed that it be allowed to
introduce as additional evidence the deposition of Maurice V. Bane, or in the alternative,
for the Sandiganbayan to take judicial notice of the facts established by the said
deposition. On 21 August 2000, the Sandiganbayan issued a Resolution denying
petitioners motion. The Resolution stated:

Allegedly the deposition of Maurice V. Bane was introduced as PCGGs evidence in Civil
Case No. 0130 (in relation to G.R. No. 107789) which is an incident of and consolidated
with the above-entitled case in connection with PCGGs Very Urgent Petition for
Authority to Hold Special Stockholders Meeting for the Purpose of Increasing ETPIs
Authorized Capital Stock and the said deposition of Maurice V. Bane is now a part and
parcel of the record of this main case.

Judicial notice is found under Rule 129 which is titled What Need Not Be Proved.
Apparently, this provision refers to the Courts duty to consider admissions made by the
parties in the pleadings, or in the course of the trial or other proceedings in resolving
cases before it. The duty of the Court is mandatory and in those cases where it is
discretionary, the initiative is upon the Court. Such being the case, the Court finds the
Urgent Motion and/or Request for judicial notice as something which need not be acted
upon as the same is considered redundant.

On the matter of the deposition of Maurice V. Bane, the admission of the same is done
through the ordinary formal offer of exhibits wherein the defendant is given ample
opportunity to raise objection on grounds provided by law. Definitely, it is not under
Article 129 on judicial notice.[9]
Petitioner moved for reconsideration, which the Sandiganbayan denied in a Resolution
issued on 3 April 2001. The Resolution stated:

In the subject Resolution [issued on 21 August 2000], this Court ruled that the Urgent
Motion and/or Request for Judicial Notice was something that need not be acted upon as
the same was already considered redundant, the deposition of Bane, having become part
and parcel of the record of this main case since Civil Case No. 0130 is an incident to the
same.

This Court further held that the admission of same is done through ordinary formal offer
of exhibits wherein defendant is given ample opportunity to raise objection on grounds
provided by law, and not under Rule 129 on judicial notice.

WHEREFORE, there being no other issue which merit consideration of this Court, the
Motion for Reconsideration is hereby denied.[10 ](Emphasis supplied)

On 16 November 2001, petitioner filed a Motion to Admit Supplemental Offer of Evidence

(Re: Deposition of Maurice V. Bane), seeking once again the admission of the deposition.
On 7 February 2002, the Sandiganbayan promulgated the assailed Resolution, denying
petitioners motion. The Sandiganbayan ruled:

The only issue that the court is actually called upon to address in the pending incident is
whether or not We should allow plaintiff-movants Supplemental Offer of Evidence
consisting of the deposition of Maurice V. Bane.

xxx

Defendants Opposition to the pending incident as well as plaintiffs Reply to the

Opposition gave various reasons why the motion should or should not be granted. But in
the courts view, it is not really a question of whether or not plaintiff has already rested
its case as to obviate the further presentation of evidence. It is not even a question of
whether the non-appearing defendants are deemed to have waived their right to cross-
examine Bane as to qualify the admission of the deposition sans such cross-examination.
Indeed, We do not see any need to dwell on these matters in view of this courts
Resolution rendered in April 1, 1998 which already denied the introduction in evidence of
Banes deposition and which has become final in view of plaintiffs failure to file any
motion for reconsideration or appeal within the 15-day reglementary period. Rightly or
wrongly, the resolution stands and for this court to grant plaintiffs motion at this point in
time would in effect sanction plaintiffs disregard for the rules of procedure. Plaintiff has
slept on its rights for almost two years and it was only in February of 2000 that it sought
to rectify its ineptitude by filing a motion to reopen its case as to enable it to introduce
and offer Banes deposition as additional evidence, or in the alternative for the court to
take judicial notice of the allegations of the deposition. But how can such a motion be
granted when it has been resolved as early as 1998 that the deposition is inadmissible.
Without plaintiff having moved for reconsideration within the reglementary period, the
resolution has attained finality and its effect cannot be undone by the simple expedient
of filing a motion, which though purporting to be a novel motion, is in reality a motion for
reconsideration of this courts 1998 ruling. Hence, the subsequent motions, including the
present incident are deemed moot and academic.[11]

Hence, this petition for certiorari.

I vote to grant the petition.

It is important to note that the Second Amended Notice to Take Deposition of Mr. Maurice
V. Bane Upon Oral Examination, filed on 25 September 1996, was after the consolidation
of Civil Case No. 0130 with the main case, Civil Case No. 0009, through the
Sandiganbayan Resolution dated 12 April 1993. This is evident in the caption of the
notice, thus:

REPUBLIC OF THE PHILIPPINES

SANDIGANBAYAN
MANILA

Third Division

Republic of the Philippines,

Plaintiff,

CIVIL CASE NO. 0009

-versus- (Incident Case No. 0130

and G.R. No. 107789)

JOSE L. AFRICA, ET AL.,

Defendants.

It should be noted that the late Jose L. Africa, one of the defendants in Civil Case No.
0009, has been substituted by his heirs, including his son Victor Africa. Thus, Justice
Brion's statement that Victor Africa is plainly not a party to Civil Case No. 0009[12] is
misleading. Although Victor Africa was not originally impleaded in Civil Case No. 0009,
Victor Africa became one of the substitute defendants in Civil Case No. 0009 upon the
demise of Jose L. Africa. In fact, Victor Africa, as substitute defendant in Civil Case No.
0009, has filed with the Sandiganbayan several pleadings[13] and his Offer of Evidence.
[14]

All the defendants of Civil Case No. 0009 were given notice of the scheduled testimony
by oral deposition of Maurice V. Bane. Furthermore, the notice stated that [t]he
deposition of said witness shall be used in evidence in Incident Case No. 0130-G.R. No.
107789 as well as in the main case of Civil Case No. 0009.[15] Since notices have been
duly served on all the defendants, those who failed to show up at the deposition-taking
are deemed to have waived their right to appear and cross-examine the deponent.
Indeed, under Section 4, Rule 23 of the Rules of Civil Procedure, the deposition may be
used against any party who was present or represented at the taking of the deposition or
who had due notice thereof. Section 4, Rule 23 reads:

Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or an

interlocutory proceeding, any part or all of a deposition, so far as admissible under the
rules of evidence, may be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in accordance with any one of the
following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as witness;

(b) The deposition of a party or of any one who at the time of the taking of the deposition
was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any
purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for any
purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a
distance more than one hundred (100) kilometers from the place of trial or hearing, or is
out of the Philippines, unless it appears that his absence was procured by the party
offering the deposition; or (3) that the witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has
been unable to procure the attendance of the witness by subpoena; or (5) upon
application and notice, that such exceptional circumstances exist as to make it desirable,
in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used; and

(d) if only part of the deposition is offered in evidence by a party, the adverse party may
require him to introduce all of it which is relevant to the part introduced, and any party
may introduce any other parts. (Emphasis supplied)

Granting that among the defendants in the main Civil Case No. 0009, only Victor Africa is
a party to the incident Civil Case No. 0130, still all the other defendants in Civil Case No.
0009 were given notice of the scheduled deposition-taking. The reason why all the
defendants were given notice of the said deposition-taking was because at that time,
Civil Case No. 0130 was already consolidated with Civil Case No. 0009 and as
emphasized in the second amended notice, [t]he deposition of said witness shall be
used in evidence in Incident Case No. 0130-G.R. No. 107789 as well as in the main case
of Civil Case No. 0009.[16]

The Sandiganbayan Resolution dated 12 April 1993 which consolidated the main case,
Civil Case No. 0009, with several incident cases including Civil Case No. 0130, reads:

Republic of the Philippines

SANDIGANBAYAN
Manila

----

THIRD DIVISION

REPUBLIC OF THE PHILIPPINES,

Plaintiff,

-versus- CIVIL CASE NO. 0009

JOSE L. AFRICA, ET AL.,

Defendants.

X---------------------------x

VICTOR AFRICA, ET AL.,

Intervenors,
X---------------------------x

POLYGON INVESTORS AND MANAGERS,

INC.,

Plaintiff,

-versus- CIVIL CASE NO. 0043

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,

Defendants.

X---------------------------x

AEROCOM INVESTORS AND MANAGERS,

INC.,

Plaintiff,

-versus- CIVIL CASE NO. 0044

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,

Defendants.

X---------------------------x

JOSE L. AFRICA, ET AL.,

Plaintiffs,

-versus- CIVIL CASE NO. 0045

EDUARDO M. VILLANUEVA and

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT,

Defendants.

X---------------------------x

JOSE L. AFRICA, ET AL.,

Plaintiffs,
-versus- CIVIL CASE NO. 0047

MELQUIADES GUTIERREZ,
ET AL.,
Defendants.

X---------------------------x

VICTOR AFRICA, ET AL.,

Plaintiffs,

-versus- CIVIL CASE NO. 0130

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,

Defendants.

X---------------------------x

TRADERS ROYAL BANK,

Plaintiff,

-versus- CIVIL CASE NO. 0131

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,

Defendants.

X---------------------------x

FAR EAST BANK & TRUST CO.,

Plaintiff,

-versus- CIVIL CASE NO. 0139

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,
Defendants.

X---------------------------x

STANDARD CHARTERED BANK,

Plaintiff,
-versus- CIVIL CASE NO. 0143

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,

Defendants.

X---------------------------x

TRADERS ROYAL BANK,

Plaintiff,

-versus- CIVIL CASE NO. 0128

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,

Defendants.

X---------------------------x

DOMESTIC SATELLITE
PHILIPPINES, INC.,

Petitioner,

-versus- CIVIL CASE NO. 0106

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT AND THE
ASSET PRIVATIZATION TRUST,

Respondents.

X---------------------------x

PHILIPPINE COMMUNICATIONS
SATELLITE CORPORATION AND
PHILIPPINE OVERSEAS TELE-
COMMUNICATIONS CORPORATION,

Plaintiffs,

-versus- CIVIL CASE NO. 0114

PRESIDENTIAL COMMISSION Present:
ON GOOD GOVERNMENT, HERMOSISIMA, J., Chairman,
Defendant. DEL ROSARIO & DE LEON, JJ.

Promulgated: April 15, 1993

X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

DE LEON, J.

Submitted for resolution is the Motion for Consolidation, dated June 22, 1992, filed by the
Republic of the Philippines (represented by the PCGG), through counsel.

The record shows that there is no opposition in the above-entitled cases to the said
motion. It also appears that the subject matters of the above-entitled cases are and/or
may be treated as mere incidents in Civil Case No. 0009.

WHEREFORE, the above-entitled cases are hereby ordered consolidated with Civil Case
No. 0009, and shall henceforth be considered and treated as mere incidents of said Civil
Case No. 0009.

SO ORDERED.

Manila, Philippines, April 12, 1993.[17]

Section 1, Rule 31 of the Rules of Court provides:

Section 1. Consolidation. When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of any or all the matters in
issue in the actions; it may order all the actions consolidated; and it may make such
orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(Emphasis supplied)

The 12 April 1993 Resolution of the Sandiganbayan ordered a consolidation of all the
cases, not merely a joint hearing or trial.

Justice Brion maintains that to resolve the issue of the admissibility of the Bane
deposition, the effect of the consolidation of Civil Case No. 0130 with Civil Case No. 0009
should first be determined. Justice Brion emphasizes that despite the consolidation, the
two cases remain distinct and separate from each other, such that a mere notice of
deposition taking, even if under the expressed intent of using the testimony in evidence
in the main case, cannot automatically bind the private respondents who were not
previously heard thereon.

In his modified draft Decision, Justice Brion posits that the consolidation of Civil Case No.
0009 with several incident cases including Civil Case No. 0130 is merely a consolidation
for trial. On page 31 of the modified Draft Decision, a consolidation for trial, as
defined in American jurisprudence is:

Where several actions are ordered to be tried together but each retains its separate
character and requires entry of a separate judgment. This type of consolidation does not
merge the suits into a single action, or cause the parties to one action to be parties to
the other.
In this kind of consolidation, the cases are merely tried together but a decision is
rendered separately in each case.

In Philippine jurisprudence, the consolidation of cases merges the different actions into
one and the rights of the parties are adjudicated in a single judgment, thus:

The effect of consolidation of actions is to unite and merge all of the different actions
consolidated into a single action, in the same manner as if the different causes of action
involved had originally been joined in a single action, and the order of consolidation, if
made by a court of competent jurisdiction, is binding upon all the parties to the different
actions until it is vacated or set aside. After the consolidation there can be no further
proceedings in the separate actions, which are by virtue of the consolidation
discontinued and superseded by a single action, which should be entitled in such manner
as the court may direct, and all subsequent proceedings therein be conducted and the
rights of the parties adjudicated in a single action.[18] (Emphasis supplied)

Indeed, when consolidated cases are appealed to the Supreme Court or when the Court
orders consolidation of cases, the Justice to whom the consolidated cases are assigned
renders a single decision, adjudicating all the rights of the parties in the consolidated
cases.[19] The Chief Justice assigns the consolidated cases to the Member-in-Charge to
whom the case having the lower or lowest docket number has been raffled.[20]

The 12 April 1993 Resolution of the Sandiganbayan ordered the consolidation of the
incidental cases, including Civil Case No. 0130, with the main case, Civil Case No. 0009.
Unlike a mere order of a joint hearing or trial of any or all the matters in issue in the
actions, the consolidation of actions merges the different actions into one single action.
This means that evidence, such as depositions, taken after the consolidation is
admissible in all the actions consolidated whenever relevant or material. In this case,
since the notice and the deposition-taking was after the consolidation of Civil Case No.
0130 with the main case, Civil Case No. 0009, the deposition could be admitted as
evidence in the consolidated cases.[21]

The purpose of consolidation is to avoid multiplicity of suits, prevent delay, clear

congested dockets, simplify the work of the trial court, and save unnecessary costs and
expenses.[22] The consolidation of actions involving a common question of law or fact
seeks to prevent a repetition of evidence, such that the testimony of witnesses may be
used in all the consolidated cases whenever it is relevant or material.

In Bank of Commerce v. Perlas-Bernabe,[23] the Court ordered the consolidation of two

cases which involve the same focal issue and require substantially the same evidence on
the matter. Similarly, in Domdom v. Third and Fifth Division of the Sandiganbayan,[24]
the Court ordered the consolidation of cases in the Sandiganbayan, where the core
element of the cases is substantially the same and the main witness is also the same.
The Court held:

In Teston v. Development Bank of the Philippines, the Court laid down the requisites for
the consolidation of cases, viz:

A court may order several actions pending before it to be tried together where they
arise from the same act, event or transaction, involve the same or like issues, and
depend largely or substantially on the same evidence, provided that the court has
jurisdiction over the cases to be consolidated and that a joint trial will not give one party
an undue advantage or prejudice the substantive rights of the parties.

The rule allowing consolidation is designed to avoid multiplicity of suits, to guard against
oppression or abuse, to prevent delays, to clear congested dockets, and to simplify the
work of the trial court in short, the attainment of justice with the least expense and
vexation to the parties-litigants.
xxx

In the present case, it would be more in keeping with law and equity if all the cases filed
against petitioner were consolidated with that having the lowest docket number pending
with the Third Division of the Sandiganbayan. The only notable differences in these cases
lie in the date of the transaction, the entity transacted with and the amount involved.
The charge and core element are the same estafa through falsification of documents
based on alleged overstatements of claims for miscellaneous and extraordinary
expenses. Notably, the main witness is also the same Hilconeda P. Abril.

It need not be underscored that consolidation of cases, when proper, results in the
simplification of proceedings which saves time, the resources of the parties and the
courts and the abbreviation of trial. It contributes to the swift dispensation of justice, and
is in accord with the aim of affording the parties a just, speedy and inexpensive
determination of their cases before the courts. Above all, consolidation avoids the
possibility of rendering conflicting decisions in two or more cases which would otherwise
require a single judgment.[25] (Emphasis and underscoring in the original)

In this case, Maurice V. Bane is a vital witness in the main Civil Case No. 0009 and the
incidental Civil Case No. 0130. In fact, as pointed out by Justice Brion, in petitioner's Pre-
Trial Brief dated 30 August 1996, petitioner offered to present Maurice V. Bane as one of
the witnesses in the main Civil Case No. 0009. Thus, when petitioner filed on 25
September 1996 its Second Amended Notice to Take Deposition of Mr. Maurice V. Bane
Upon Oral Examination, in Civil Case No. 0009 in connection with Incident Case No. 0130
and G.R. No. 107789, petitioner emphasized that [t]he deposition of said witness shall
be used in evidence in Incident Case No. 0130-G.R. No. 10779 as well as in the main
case of Civil Case No. 0009. In fact, all the respondents were given the chance to be
heard considering that all the defendants of Civil Case No. 0009 were given notice of the
scheduled testimony by oral deposition of Maurice V. Bane, which was taken on 23 and
24 October 1996. This is very clear from petitioners Second Amended Notice to Take
Deposition of Mr. Maurice V. Bane Upon Oral Examination, filed on 25 September 1996, in
Civil Case No. 0009 in connection with Incident Case No. 0130 and G.R. No. 107789,
thus:

REPUBLIC OF THE PHILIPPINES

SANDIGANBAYAN
MANILA

Third Division

Republic of the Philippines,

Plaintiff,

CIVIL CASE NO. 0009

-versus- (Incident Case No. 0130

and G.R. No. 107789)

JOSE L. AFRICA, ET AL.,

Defendants.

x---------------------------------- x

SECOND AMENDED NOTICE TO TAKE DEPOSITION OF MR. MAURICE V. BANE UPON ORAL
EXAMINATION
---------------------------------------------------------------------------------------

Pursuant to Rule 24[26] of the Revised Rules of Court, notice is hereby given to
defendants Jose L. Africa (deceased) thru his Estate represented by Victor Africa and Atty.
Juan de Ocampo and Atty. Yolanda Javellana, Manuel H. Nieto, Jr., Ferdinand E. Marcos
(deceased) thru his Estate represented by Special Administratrix BIR Commissioner
Liwayway Vinzons-Chato, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan Ponce Enrile,
and Potenciano Ilusorio thru their counsels on records that Plaintiff thru the undersigned
counsel will take the testimony by oral deposition of Mr. Maurice V. Bane c/o Cable &
Wireless Plc., 124 Theobalds Road, London WC1X 8RX, England on October 23, 24 and
25, 1996 at 9:00 a.m. and 2:00 p.m., until finished before the Philippine Consul General
in London, England, in his office or in a suitable place in London or in Wales, England, as
may be advised to the parties.

The purpose of the deposition is for Mr. Maurice Bane to identify and testify on the facts
set forth in his Affidavit hereto attached as Annex A so as to prove the ownership issue
in favor of plaintiff and/or establish prima facie factual foundation for sequestration of
Easterns Class A stock in support of the Very Urgent Petition For Authority To Hold
Special Stockholders Meeting For the Sole Purpose of Increasing Easterns Authorized
Capital Stock (Incident Case No. 0130 G.R. No. 107789). The deposition of said witness
shall be used in evidence in Incident Case No. 0130-G.R. No. 107789 as well as in the
main case of Civil Case No. 0009. (Underscoring in the original; boldfacing supplied)

In his modified draft Decision, Justice Brion maintains that respondents' notice of the
taking of the Bane deposition is insufficient waiver of their right to appear and cross-
examine the deponent when they failed to show up at the deposition-taking. Justice Brion
insists that respondents cannot be bound by the taking of the Bane deposition without
the consequent impairment of their right to cross-examine.[27]

I disagree. The 12 April 1993 Resolution of the Sandiganbayan, ordering the

consolidation of the incidental cases, including Civil Case No. 0130, with the main case,
Civil Case No. 0009, effectively merged the different actions into one single action. The
consolidation of the cases was meant to expeditiously settle the interwoven issues
involved in the consolidated cases. The simplification of the proceedings with the aim of
affording the parties a just, speedy and inexpensive determination of their cases before
the courts can be achieved when repetition of the same evidence or presentation of
identical witnesses is dispensed with. This means that evidence, such as depositions,
taken after the consolidation is admissible in all the actions consolidated whenever
relevant or material. In this case, since the notice and the deposition-taking was after the
consolidation of Civil Case No. 0130 with the main case, Civil Case No. 0009, the
deposition could be admitted as evidence in the consolidated cases. This Court has even
held in Yu, Sr. v. Basilio G. Magno Construction and Development Enterprises, Inc.[28]
that in consolidated cases, [t]he evidence in each case effectively became the evidence
of both, and there ceased to exist any need for the deciding judge to take judicial notice
of the evidence presented in each case. Besides, even assuming that the 12 April 1993
Resolution of the Sandiganbayan merely ordered a joint hearing or a consolidation for
trial, private respondents are still bound by the Bane deposition considering that they
were given notice of the deposition-taking. The evidence adduced in a joint trial binds all
the parties. Otherwise, what would be the point of holding a joint trial if common
witnesses have to be presented again in each of the cases and the same evidence
offered again and again? Precisely, a joint trial aims to prevent repetition of the same or
common evidence and to spare the common witnesses from the unnecessary
inconvenience of testifying on the same issues in separate proceedings if the cases were
not jointly tried. To rule otherwise is to frustrate the purpose of a joint trial which is to
prevent delay and save unnecessary costs and expense.[29]

In Tan v. Lim,[30] the Court even allowed evidence that has not been formally offered in
a case which was jointly heard with another case because evidence offered during the
joint hearing was deemed evidence for both cases which were jointly heard. The Court
ruled:

It may be true that Section 34, Rule 132 of the Rules directs the court to consider no
evidence which has not been formally offered and that under Section 35, documentary
evidence is offered after presentation of testimonial evidence. However, a liberal
interpretation of these Rules would have convinced the trial court that a separate formal
offer of evidence in Civil Case No. 6518 was superfluous because not only was an offer of
evidence made in Civil Case No. 6521 that was being jointly heard by the trial court,
counsel for Jose Renato Lim had already declared he was adopting these evidences for
Civil Case No. 6518. The trial court itself stated that it would freely utilize in one case
evidence adduced in the other only to later abandon this posture. Jose Renato Lim
testified in Civil Case No. 6518. The trial court should have at least considered his
testimony since at the time it was made, the Rules provided that testimonial evidence is
deemed offered at the time the witness is called to testify. Rules of procedure should not
be applied in a very rigid, technical case as they are devised chiefly to secure and not
defeat substantial justice.[31]

Furthermore, Justice Brion posits that in determining the admissibility of the Bane
deposition, not only Section 4, Rule 23 must be considered but also Section 47, Rule 130.
The said provisions read:

Sec. 4. [Rule 23] Use of depositions. At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far as admissible under the
rules of evidence, may be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in accordance with any one of the
following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as witness;

(b) The deposition of a party or of any one who at the time of the taking of the deposition
was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any
purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for any
purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a
distance more than one hundred (100) kilometers from the place of trial or hearing, or is
out of the Philippines, unless it appears that his absence was procured by the party
offering the deposition; or (3) that the witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has
been unable to procure the attendance of the witness by subpoena; or (5) upon
application and notice, that such exceptional circumstances exist as to make it desirable,
in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used; and

(d) if only part of the deposition is offered in evidence by a party, the adverse party may
require him to introduce all of it which is relevant to the part introduced, and any party
may introduce any other parts.

Sec. 47. [Rule 130] Testimony or deposition at a former proceeding. The testimony or
deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter,
may be given in evidence against the adverse party who had the opportunity to cross-
examine him. (Emphasis supplied)
In my opinion, Section 47, Rule 130 does not apply in this case since the Bane deposition
was not taken in a former case or proceeding. The records show that the Bane deposition
was taken when the cases were already consolidated. Clearly, there is no former
proceeding to speak of which would require the application of Section 47, Rule 130. The
Bane deposition was taken in CIVIL CASE NO. 0009 (Incident Case No. 0130 and G.R. No.
107789). In fact, in the Second Amended Notice to Take Deposition of Mr. Maurice V.
Bane Upon Oral Examination, filed on 25 September 1996, the title of the case was
REPUBLIC OF THE PHILIPPINES, Plaintiff, versus JOSE L. AFRICA, ET AL., Defendants with
case number CIVIL CASE NO. 0009 (Incident Case No. 0130 and G.R. No. 107789).
Thus, Justice Brions reliance on Section 47, Rule 130 is misplaced. Besides, even if
Section 47 is applicable, the Bane deposition may still be given in evidence against the
respondents since all of them were given notice of the deposition, and thus had the
opportunity to cross-examine the deponent had they participated in the deposition-
taking. Since notices have been duly served on all the respondents, those who failed to
show up at the deposition-taking are deemed to have waived their right to appear and
cross-examine the deponent.

In this case, the Sandiganbayan granted the request for the taking of the deposition of
Maurice V. Bane, who was Executive Vice-President and Treasurer of ETPI from 1974 until
his retirement in 1987.32 In October 1996, during the deposition-taking, Maurice V. Bane
was already 72 years old and residing at 1 Ecton Hall, Church Way, Ecton, Northants
(England).33 Clearly, under Section 4(c)(2) of Rule 23,34 the deposition of Maurice V.
Bane can be used as direct evidence. In fact, in its Resolutions issued on 21 August 2000
and 3 April 2001, the Sandiganbayan stated that the deposition of Maurice V. Bane has
become part and parcel of the record of this main case (Civil Case No. 0009) since Civil
Case No. 0130 is an incident to the same.

A cursory reading of the Bane deposition, which took two days to complete and covers
211 pages of the transcript of record of the proceedings and the testimony, reveals that
it is a critical and vital evidence in the case of petitioner against private respondents with
regard to its allegation in Civil Case No. 0009 that private respondents shareholdings in
ETPI were illegally purchased and rightly belongs to the Government.

The testimony of the witness, Maurice V. Bane, was offered for the following purposes:

[I]n general the testimony is offered to prove that the Class A stockholdings in Eastern
Telecommunications Philippines Inc, or Eastern for short, otherwise referred to as the
Filipino 60% equity, is ill gotten in nature; that the actual and/or beneficial owner of said
shares was the late President Ferdinand Marcos; and that accordingly, said shares are
subject to reversion and/or forfeiture in favor of the Plaintiff Republic of the Philippines in
this case. Specifically, the testimony is offered to establish the environmental facts and
attendant circumstances surrounding the formation and organization of Eastern in 1974;
that there was duress and/or compulsion exerted upon Cable & Wireless and its wholly
owned subsidiary, the Eastern Extension Australasia Telegraph Company, of which the
witness was the then General Manager in the Philippines, such that Cable & Wireless and
Eastern Extension Australasia were forced or compelled to give up their legitimate
business activities in the Philippines which was 100% British owned in favor of Eastern,
which was to be newly organized as a 60/40 Filipino company, with 40% being for the
account of the company of the witness, Mr. Bane.

In short, the witness will establish in these proceedings that President Marcos and/or his
emissaries or parties acting on his behalf gave the witness only two possible options
which was: (1) a 40% equity in the company to be newly organized, which is Eastern in
exchange for surrendering all of the assets and franchise of Eastern Extension
Australasia; or 100% of nothing, meaning that if the witness and his company refused to
give up their legitimate business in the Philippines then Marcos made it clear that there
will be no more Eastern Extension Australasia that would be operating in the Philippines.

Lastly, the testimony is offered to prove the ownership issue that is involved in this case
in favor of the Plaintiff, and also support the pending petition of Eastern Telecoms to
increase its authorized capital stock from the present 250 million pesos to 4 billion pesos
by allowing the PCGG to vote the sequestered Class A stock in the company. Hence, the
testimony will establish the prima facie factual foundation for maintaining the
sequestration of the Class A stock.[35]

In the deposition of Maurice V. Bane, he identified and affirmed his Affidavit36 dated 9
January 1999. Excerpts from Bane's testimony during the deposition-taking are as follow:

MR. LIM: Mr. Bane, paragraph 2 of your affidavit refers to a company ETPI, the acronym
in letter ETPI. May I ask you, sir, what is ETPI?

A That's Eastern Telecommunications Philippines, Incorporated.

Q ETPI and Eastern refer to the same company, which is Eastern Telecoms or the full
name thereof, Eastern Telecommunications Philippines, Inc?
A That's correct, yes.

Q Again, your Honor, for consistency in the proceedings, instead of ETPI, the questions
and the answers will refer to Eastern Telecommunications Philippines, Inc as simply
Eastern. Paragraph 2 also of your affidavit refers to EEATC. Please, sir, tell us, Mr.
Bane, what position, what particular position you held in EEATC when it was operating in
the Philippines?
A I was the general manager.

Q Was that the highest position in the Philippines? Was that the highest office in EEATC
in the Philippine operation?
A Yes, it was, yes, the British terminology for these things quite often is that we always
used to refer to managers but the American terminology, of course, is usually
president it was the equivalent of.

Q Thank you, sir. Now, just for clarity can you elaborate on what was EEATC in relation to
Cable and Wireless or C&W?

MR. AFRICA: He has already answered, your Honor.

A Yes, it was a wholly, 100% owned subsidiary of Cable and Wireless.[37]

xxx

Q x x x Mr. Bane, I would refer you back to paragraph 3 of your affidavit, sir. I noted from
your narration in paragraph 3 that the earth satellite stations contract which you had just
explained was awarded after bidding by President Marcos to a company you mentioned
here which is Philippines Overseas Telecommunications Corporation, or POTC. My
question is: do you know this POTC, what was it?
A Yes, it was the - - I think I'm correct in saying - - it was the management arm of
Philcomsat. Philcomsat, Philippines Telecommunications Satellite Corporation. POTC, well
the managers of Philcomsat, and I understand that the shareholders were the same in
each case.

Q In this paragraph, sir, you stated in reference to Philippine Overseas

Telecommunications Corporation or POTC that it was relatively unknown in the
international telecommunications industry. Could you explain that?[38]

xxx

A Well, there were some, I should imagine, some ten or twelve companies were bidding
or hoping to be awarded the earth station contract. Among those was my own company,
Eastern - - EEATC. We had not heard of, any of us: RCA, ITT, the large number of other
domestic companies such as Clavicili and others, were all bidding for this earth station
and none of us had heard of POTC until it suddenly emerged that it was a company that
had been formed and that very shortly after our bids all went in, we heard that it had
been, that the contract had been awarded to Philippines Overseas Telecommunications
Corporation.

Q Thank you, sir. (Off the record) May I proceed, your Honor? Did you find out who were
the people behind POTC?
A Yes

Q And who were they?

A To the best of my recollection the incorporators were Potenciano Ilusorio, Honorio
Poblador, Ambassador Nieto, Ambassador Benedicto, and I think there were two other
gentlemen, one of them I think was the brother in law of Mr. Nieto and the other one I
cannot recall - - no, I can't recall his name. He died fairly soon after, I think, that was
formed.[39]

xxx

MR. LIM: Mr. Bane, you mentioned personalities like Potenciano Ilusorio, Honorio
Poblador, Manuel Nieto Jr., Roberto Benedicto. My question to you, sir, is: what was your
personal impression of these gentlemen vis-a-vis, for instance, the Marcos
administration?

A Well, it was common knowledge among the expatriate, senior expatriate community
that these gentlemen were close associates of President Marcos.

MR. AFRICA: May I also object again, your Honor please, to the statement of the witness.
Again, it's not a statement of fact but only a matter of discussion among his co-workers,
but facts again are different from what his perception was.

MR. LIM: That is noted, your Honor.

CONSUL GENERAL: That is noted, Mr. Africa.

MR. LIM: Mr. Witness, was this group of people, these gentlemen or personalities that
you have mentioned, do you know if they were later on identified with any particular
business or industry sector in the Philippines?

A Yes, they were identified with telecommunication interests.

Q Was there an occasion when your own company, EEATC, forged a partnership or
business with POTC?
A Yes, there was.

Q What was the business that the two companies forged or engaged in?
A That business was to establish a tropospheric scatter system between the Philippines
and Taiwan. In actual fact, it was three companies involved: it was POTC and also
Western Union International in the United States, and Eastern Extension or EEATC.

xxx

Q So that tropospheric scatter system became operational?

A Oh yes, yes.

Q Do you know if the system was inaugurated?

A It was, yes.

Q Who were the principal guests during the inauguration?

A President and Mrs. Marcos.

Q Now what technical qualification did your company, EEATC, have to operate that
tropospheric scatter system?
A In addition to being a 20% stockholder, my company was appointed as managers.
Eastern, with the backing of Cable & Wireless, was able to provide all the necessary
technical expertise for the implementation and operation of the system. Cable & Wireless
as such has done these systems, a large number of these systems worldwide, so we had
all the experience necessary.

Q At that time, meaning at the time this tropospheric scatter system was established,
what was your company then, what was your company at that time?
A Eastern Extension Australasia and China Telegraph.

Q EEATC?
A EEATC.

Q If you don't mind, sir, kindly refer to that as EEATC instead of Eastern. What technical
qualification did POTC have to be able to be EEATC's partner in this tropospheric system
business?
A To the best of my knowledge little or no technical qualification.[40]

xxx

Q Now Mr. Bane, let me now take you to paragraph 5 of your affidavit and if I may read
to you, sir. Paragraph 5: When President Marcos declared Martial Law in September 1972,
it was clear that his grip on the country was virtually complete. C&W was fully aware of
its uneasy tenure in the Philippines. In March 1973, then Secretary of National Defense
Juan Ponce Enrile called us to a conference at Camp Crame. I attended said meeting
together with the representatives of RCA and Globe Mackay. Secretary Enrile firmly told
us that we had until July 1974 to organize ourselves into 60/40 corporations with Filipino
majority ownership and, if we did not comply, the Government would take the necessary
action. First of all, please explain and elucidate on your statement C&W was aware of its
uneasy tenure in the Philippines.
A Well, prior to Martial Law we were operating quite comfortably as a company, but with
the implementation of Martial Law there was great deal of uncertainty as to what might
happen in the country under Martial Law. In other countries it had been known that
things were, shall we say, nationalized or taken over and, of course, there was a certain
degree of unease among us when we discussed in the Cable & Wireless that something
similar might happen in the Philippines.

Q Now you made mention in this paragraph that I read of other companies, namely RCA
and Globe Mackay. What were these companies?
A They were similar to EEATC, operating in exactly the same fashion, doing the same
type of business, all three of us were competing against each other for international
business.

Q Do you know the nationality of RCA and Globe Mackay?

A They were both 100% American corporations.

Q Whereas EEATC was, according to you, 100% British?

A That is correct, yes.

Q Except for that difference in the nationality the three of you, meaning EEATC, RCA and
Globe Mackay, were engaged in the same kind of business which was
telecommunications in the Philippines?
A Correct.

xxx

Q Now, can you remember where in Camp Crame this meeting took place?
A Yes, it was in a fairly large boardroom. I would imagine the table was large enough to
accommodate about 16 people. I had the impression that it was the board room perhaps
attached to the Secretary of Defense's office in Camp Crame.
Q Now, was it actually Secretary of National Defense Juan Ponce Enrile who met with
you?
A Yes, it was.

Q In person?
A In person.

Q Now, in paragraph 6 of your affidavit which is a reference to what transpired in that

meeting, you stated, and I would like to quote the short sentence in paragraph 6: I
pointed out that - - I withdraw the question. Mr. Witness, what transpired in this
meeting with Secretary Enrile? In other words, why did he call you together with RCA and
Globe Mackay people to a meeting?
A Well, he said, as far as I can recall and after all it's a long time ago, he recalled that
the meeting was to in effect spell out the rules in terms of telecommunications. He
pointed out to RCA and ITT that under the Laurel-Langley Act, which was due I think in
July 1974 to expire, that they would have to go 60% Philippine ownership. I think that I'm
pretty sure that Mr. Voss or his lawyer did say that their franchise in actual fact was
established in 1924 and therefore it fell without, beyond the Laurel-Langley Act, but I
seem to recall that Attorney Enrile said that that's not germane, you will go 60/40. He
also said to us, EEATC, that you will go 60/40.

xxx

MR. LIM: x x x My question, sir, is: what exactly did Secretary Enrile tell you, and I refer
to your person, and your lawyer who was with you, Attorney Luciano Salazar?

A After he dealt with RCA and Globe Mackay, I said to him: well, the Laurel-Langley Act
does not apply to EEATC; we are 100% British corporation, our franchise goes back to
1880 and we were the first company, actually, to connect the Philippines to the outside
world in communications, granted by Queen Isabella of Spain, I think, and after the War,
the Second World War, the franchise was renewed by President Quirino in 1952, I think it
was.

xxx

Q You mean to tell the court that Secretary Enrile also included your company EEATC to
be made 60/40?
A Oh yes.

Q Now, your companion, Attorney Luciano Salazar, did he say anything to Mr. Enrile?
A Yes, he did.

Q What was his remark or explanation if any?

A He said that the franchise was perfectly constitutional and that Mr. Bane was quite
correct and that legally there was no reason for Eastern to go 60/40.

Q When you say now, just now Eastern you are referring to EEATC?
A EEATC, yes.

xxx

MR. LIM: Did Secretary Enrile respond favorably to the explanations of Attorney Salazar?
A No, he did not. He said that if EEATC did not move to a 60/40 position then there would
be no EEATC.

xxx

Q What options did Secretary Enrile give you during this meeting?

MR. AFRICA: Same objection, your Honor please, which is that Secretary Enrile is the
best witness for this particular aspect.
MR. LIM: Same request for - - subject to a court ruling later.

A Two options really: to become 60/40 Filipino corporation or to, in effect, have 100% of
nothing, because there would not be any EEATC.[41]

xxx

MR. LIM: Thank you, your Honor. Mr. Bane, we ended your testimony with your
confirmation that the events narrated in paragraph 7 up to paragraph 14 of your affidavit
all transpired after that meeting in March 1973 with Secretary Enrile, so my question now
is: in particular what followed after that meeting with Secretary Enrile, was the formation
and organization of Eastern in 1974?

A Mmm.

Q Is that correct?
A Well, yes, the events really were I had to advise Cable & Wireless Hong Kong, who were
very closely connected with the Philippines, of the situation and I said we had no
alternative but to go to a 60/40 corporation. It was decided that I should come back to
London and discuss it with the directors of Cable & Wireless in London. Also, we were
asked at the meeting, which perhaps I forgot earlier on, by Secretary Enrile for progress
reports of moving to 60/40 corporation. So I wrote a letter to Secretary Enrile and said
that we were now actively planning and that I had already spoken to one or two other
telecommunication corporations but that I had to return to London to discuss it with my
senior directors. It was difficult at that time because it was Martial Law. No people were
allowed to leave the Philippines so, through that letter, I made an application to leave
and I was granted leave to come back to the UK to discuss with Cable & Wireless the
formation of a 60/40 corporation.

Q Eventually, after clearing all those hurdles, after doing all the groundwork, I mean
after passing through all the groundwork and the details, eventually what transpired was
the organization of Eastern in 1974 as a 60/40 Filipino corporation?
A That is correct, yes.

Q And the 40% or minority equity was taken by your company, Cable & Wireless?
A Correct, yes.

Q Mr. Bane, would you, and I refer to your person, have agreed to divest of 100% British
owned EEATC if pressure was not exerted on you by Secretary Enrile?
MR. AFRICA: Objected to, your Honor please, no relevance.

MR. LIM: I am asking the witness for his answer to the basic facts that now present
themselves as a result of the previous testimony.

MR. AFRICA: The same objection, your Honor. It calls for a personal opinion.

MR. LIM: Subject to the court's ruling may I ask the witness to answer? May I repeat the
question, sir? Would you, and I refer to you person, have acceded or agreed to divesting
yourself of 100% British owned EEATC in favor of only 40% equity in a new corporation, if
pressure was not exerted on you by Secretary Enrile?

A No, I would not; I would have continued with EEATC as 100% British Corporation. You
see, you have to appreciate that I had all the resources and all the backing and all the
financial support of Cable & Wireless who were the largest telecommunications operator
in the world. We could have quite easily and I know that finance would have been
available from them we could have quite easily continued as 100% British corporation.

Q Would Cable & Wireless, your own company, have agreed to the divestment of 100%
British owned EEATC if pressure was not exerted by Secretary Enrile?
A No, I don't think they would.
xxx

MR. LIM: In other words, you are saying that had it not been for that fateful meeting with
Secretary Enrile and the pressure was brought to bear on your person and your company
you would not have agreed to organizing Eastern in 1974?

MR. AFRICA: Same objection, your Honor, please, calling for an opinion and a conclusion.
A No, I would not.

MR. LIM: And the same thing is true with your company, C&W, there would have been no
permission or approval from C&W?

MR. AFRICA: Same objection, your Honor, please.

A No, they would not.

MR. LIM: And when you say no, you would not, you are saying that your person and C&W
would not have agreed to divesting EEATC of 100% British control?

MR. AFRICA: Same objection, your Honor, please.

A Correct.

MR. LIM: He said That's correct. Did you, and I refer to your person, or Attorney
Salazar check or try to find out if Secretary Enrile was acting for President Marcos in
reference to this March 1973 meeting?

A No, no we didn't. It was under Martial Law and I mean when you spoke of President
Marcos you spoke of Secretary Enrile, they were the two very close people. Martial Law,
after all, was declared as a result of an apparent attempted assassination on Secretary
Enrile. There was no point in us trying to appeal to President Marcos. We had to accept
that what Secretary Enrile said was in effect President Marcos.[42]

xxx

MR LIM.: Now, subject to the same request for a later ruling from the court, do I
understand it, Mr. Bane, that initially you were talking to Ilusorio and Poblador?

A That's correct.

Q But later in the negotiations the two were out and you were now just talking to Mr
Nieto?
A Not just to Mr. Nieto; we were also talking to Attorney Jose Africa.

Q So let me clarify that. After the Enrile meeting and because of your decision to just go
along with what Enrile wanted, there was this process set into motion to organize a new
outfit and at the start you were talking to Ilusorio and Poblador, is that right?
A Correct.

Q Later on, and this was before Eastern was organized, you continued the negotiations,
this time with Ambassador Manuel Nieto junior and Attorney Jose L. Africa, is that
correct?
A Correct.

Q Now, there is a statement in paragraph 9: We learned much later that this was upon
the instructions of President Marcos. Who told you that President Marcos had issued the
instruction to be dealing with Nieto?

MR. AFRICA: Objected to, your Honor, asking for

MR. LIM: I am asking the source of the statement.

MR. AFRICA: My objections, I am just putting it on record: objected to for asking for
hearsay evidence.

MR. LIM: Subject to a later ruling, your Honor.

A It was either Ambassador Nieto or Attorney Africa.

Q Now, I show you paragraph 10 of your affidavit which is continued, I am sorry I show
you paragraph 10, I draw your attention to paragraph 10 of your affidavit which is found
on page 4. Do you confirm and ratify in particular what is stated in paragraph 10 of the
affidavit?

MR. AFRICA: Subject to question and answer later on, your Honor, please.

A Yes.

MR. LIM: Thank you, sir. May I request, your Honor, that the entire paragraph 10 be sub
marked as Exhibit C-12-C-1 and that the last sentence therein reading: Africa quickly
spelt out the rules that they were interested in the proposition and that we were to deal
only with the BAN group (composed of Roberto Benedicto, Jose Africa and Manuel Nieto,
Jr.,). We were informed that this was at the express wish of President Marcos who had
appointed their group to control telecommunications interests; that that particular
sentence be now underscored but same would be part of C-12-C-1 which is the entire
paragraph 10, but the last sentence I request that it be underlined or underscored for
emphasis. (Marked)

Q What participation did you have in the organization of Eastern?

A I was very deeply involved, together with our director from London, Wilfred H. Davies
and also our finance director, David West.

Q Were you one of the incorporators of Eastern?

A I was, yes.

Q Did you sign the Articles of Incorporation of Eastern?

A I did.

Q Would you have agreed to be one of the incorporators of Eastern and signed its
Articles if no pressure was exerted on you by Secretary Enrile?

MR. AFRICA: Objected to, your Honor, please.

MR. LIM: I request an answer for the same reason.

A No, I don't think I would.

Q What is that, Mr Bane?

A No, I would not, no.

Q You are telling the honorable court that your agreeing to incorporate Eastern and your
having signed the Articles of Eastern was the result of that pressure during the Enrile
meeting in March of 1973?

MR. AFRICA: Same objection, your Honor.

A Yes, that is correct, because we would have continued as 100% British corporation. So
the pressure was brought to bear upon us to go to a 60/40 corporation.
MR. LIM: I notice from the Articles of Incorporation of Eastern that you are the Treasurer
in Trust, that you were the Treasurer in Trust, meaning the Treasurer upon the
incorporation of Eastern?

A Yes, that's true.[43]

xxx

MR. LIM: That is the tenor of the affidavit. Just to satisfy that concern I will rephrase the
question. Do you know what happened to the assets of EEATC when Eastern was
incorporated on June 10, 1974?

A Yes, Eastern purchased all the assets of EEATC.

Q I would like to draw your attention to paragraph 12 of your affidavit which I read: The
figure eventually negotiated for the assets (net book value only and no good will) was
ten million pesos (P10,000,000.00) on the basis of which the BAN group will put up six
million pesos (P6,000,000.00). Further meetings took place to finalize the details but
Africa later informed us that they could not raise the required amount. As a compromise,
he suggested that the new corporation raise a bank loan from which C&W could be
paid. While we were not happy with this arrangement, we resigned ourselves to the fact
that we would have to accede. It was agreed that stockholders' contribution would be
five million pesos (P5,000,000.00) plus a bank loan of seven million pesos
(P7,000,000.00) to cover asset payment and working capital. Africa then advised that
they could only raise one million pesos (P1,000,000.00) and C&W could loan them two
million pesos (P2,000,000.00). Again, we were unhappy but again we complied. My
question is: do you confirm the correctness of this narration including the figures
mentioned here?

MR. AFRICA: Subject to question and answer, your Honor please, as there are
statements which are of conclusion and/or hearsay.

A Yes, I do confirm that that's precisely what happened.

MR. LIM: What this one million pesos which was the amount that the Africa group said
they could only raise, what was this one million?

A Well, it was their contribution to the capital of the company.

Q Aside from the one million pesos contribution to the capital of Eastern from the Filipino
group of Benedicto, Africa, and Nieto, do you know if additional contributions in terms of
money were made by them afterwards?
A Well, in as much as that they repaid the loans that C&W granted them out of the
dividends yes, there were in effect contributions, I suppose.

Q How much was the amount of the loan?

A Two million pesos.

Q That two million pesos loan was repaid by the Filipino group out of stock dividends?
A No, out of yes, stock dividends, yes, cash dividends.

Q Cash dividends?
A Cash dividends as I recall.

Q Now, aside from that were there any subsequent contributions to the capital of
Eastern from the Filipino group?
A Not as far as I can recall, no.

Q So in terms of cold cash or money, what they contributed initially was only one million
pesos?
A Correct.
Q The loan that they got from C&W of two million was repaid to the company, or to C&W
in terms of the dividends?

MR. AFRICA: Already answered, your Honor.

A Yes, yes, correct.

MR. LIM: Who granted the loan to the Filipino group?

A The Hong Kong and Shanghai Bank. Well, they didn't grant it to the Filipino group; they
granted it to Eastern.

Q And was there a guarantee made for that loan?

MR. AFRICA: Leading, your Honor please.

A Yes, a guarantee was made by Cable & Wireless.

MR. LIM: I request, your Honor, for emphasis that paragraph 12 of the affidavit which
has been read into the record and which has been confirmed by the witness be
bracketed and sub marked as Exhibit C-12-d-1, paragraph 12. (Marked)

Mr Bane, would you or your company Cable & Wireless have agreed to that kind of
payment arrangement, which is to pay in dividends, if it were not for the pressure from
Secretary Enrile?

MR. AFRICA: Same objection, your Honor please.

A No, we would not; it wasn't, it was not standard business practice in any way at all. We
would not normally have agreed to a condition such as that.

xxx

Q Mr Bane, what was the position of Manuel Nieto Jr. in Eastern after incorporation?
A He was the President.

xxx

Q Now, Mr Bane, paragraph 13 of your affidavit mentions that: Attorney Luciano Salazar
drafted the Presidential Decree for the transfer of EEATC's franchise to Eastern, that said
draft decree was personally delivered to Manuel Nieto, Jr., who committed to secure
President Marcos' approval and signature. Do I take it that this was in 1974
contemporaneously with the organization of Eastern?
A Yes, it was.

Q You said Manuel Nieto Jr., was the Eastern President?

A That's correct.

Q Was Mr. Nieto able to secure the approval of President Marcos to the transfer of
EEATC's franchise to Eastern?
A Yes, he was, it was issued under Presidential Decree.

Q If I show you a copy of that Presidential Decree would you be able to recognize it in
the sense that it refers to your company, the former EEATC, not former, the EEATC?
A Yes. (Handed)

Q At this point, your Honor, I make of record that this representation has handed to Mr.
Maurice Bane Exhibit C Motion Increase in Capital.
A Yes, that is indeed the Presidential Decree.
Q Your Honor, may I make a little correction in my manifestation. What I handed to the
witness is a photocopy of Presidential Decree 48944 with the Exhibit marking being
reproduced as part of the document, the document actually marked as Exhibit C is now
part of the case records. Now, Mr. Witness, please tell the court whether you had any
personal participation in the preparation of this particular decree PD 489?
A Yes, I did. I consulted with Attorney Salazar. We went through the Eastern franchise and
so to that extent, in putting this together, yes I did co-operate with Attorney Salazar,
although of course Attorney Salazar was the prime person behind drafting the document.

Q Your affidavit mentions that this was approved by President Marcos in the entirety of
the draft decree as prepared by Attorney Salazar and you, meaning no correction was
made by Malacaang. My question is: what did that convey to you, meaning the fact that
Marcos approved the Presidential Decree drafted by Attorney Salazar and yourself
without revision or amendment?

MR. AFRICA: Objected to, your Honor please, asking for an opinion and a conclusion.

MR. LIM: That is very relevant, your Honor, the witness having participated in preparing
this.

MR. AFRICA: Anyway, my objection is on the record.

A Well, Mr. Nieto undertook and promised us that he would get the draft Presidential
Decree signed into law by President Marcos.

MR. LIM: And was he able to deliver on his promise?

A He certainly was. You can see the signature on the bottom.

Q Witness referring to
A I do recognize that signature, yes, as President Marcos' signature.

Q Your Honor, at this point may I request that this draft I'm sorry that this copy of PD
489 be again marked in this deposition proceedings as Exhibit D Deposition Bane and
the signature of President Marcos at the bottom of page 2 pointed at by the witness be
sub marked and bracketed as D-1 Deposition Bane. (Marked)

Mr. Bane, did you also serve as director of Eastern, one of the directors, I mean, of
Eastern?

A Yes, I was for a time, a short period of time.

Q Now, after Eastern's incorporation in 1974 did you carry on as an officer of Eastern?
A Yes, I did.

Q What positions?
A Executive Vice President and Treasurer.

Q And as you said this was up to 1987?

A Yes.

xxx

Q Would you have acceded to that kind of set up, meaning having Filipino partners in
the persons of Mr. Nieto and later Attorney Africa if it were not for the pressure from
Secretary Enrile during your March 1973 meeting?

MR. AFRICA: Already answered, your Honor please.

A I can only repeat what I said before, that no, of course I would not.
MR. LIM: Now, during your stint with Eastern in association with Mr. Nieto and later with
Attorney Jose Africa, do you know of instances when President Marcos intervened on
behalf of Eastern, or showed personal interest for Eastern?

MR. AFRICA: Question is vague and intervene is an all-encompassing word.

MR. LIM: I reform, your Honor. Mr Bane, you said that from 1974 continuously up to 1987
you were associated with Eastern, you were one of its officers and you were working with
Filipino directors or officers. During this time the President of the Philippines of course
was continuously Mr. Marcos. My question, sir, is: during your incumbency in Eastern do
you know of instances when President Marcos helped your company obtain
correspondenceships, or in its competition with PLDT?

A Yes, I do, yes.

Q In what way did Marcos help Eastern?

A Well, once the company was formed and under the formation of the company Eastern
or Cable & Wireless had a management contract to manage the company, we could see
that telecommunications development was very badly needed in the Philippines. The
satellite earth station had been constructed and the Tropo had gone in, but there was
still a very large demand for circuits. We therefore devised a plan to put underseas
cables, telephone cables, from the Philippines to Japan, from the Philippines to Hong
Kong, Philippines to Singapore and then latterly Philippines to Taiwan. For that we
obviously needed approvals right at the top, because we were, in effect, in competition
with PLDT. PLDT were really dragging their heels in development, perhaps because of
lack of financing or whatever. So we saw an opportunity to perhaps establish Eastern as
a major player in the Philippines telecommunications. I therefore drafted a letter which
was what is the word I'm looking for perhaps which was fine tuned perhaps is the best
word, by Attorney Jose Africa. And this set out Eastern's plans for development of
submarine cable systems and everything else, and we asked at the bottom of the letter
for Presidential approval. And this letter was signed by Ambassador Nieto; it was taken to
Malacaang and it was signed, written across the top of the page, I think the words were
just Approved, President Marcos so we received approval, direct approval from
President Marcos to proceed with the implementation of this very big cable project. It
meant to say that we had bypassed the national telecommunications commission under
whose authority this would normally have been submitted, but knowing as we did that
with PLDT's opposition we probably wouldn't have got it through the NTC.

Q So it was President Marcos himself who gave the approval for Eastern to undertake
the construction of these submarine cables that you mentioned?
A That's correct, yes.

Q And can you tell us the significance of that designation, what happened to Eastern
because it got this project?
A Well, by putting in the submarine cable systems, since we were financing them, we
had to have the approval of, of course, the distant administration in this case Hong
Kong, Singapore and Taiwan, so one of the benefits that accrued from this was that we
became a telephone correspondent to these countries. After all, these cables were very
high capacity. I think to Hong Kong they were 1380 telephone circuits, to Japan 960
telephone circuits, so that what it did it was for the great benefit of the Philippines. We
used the phrase in the letter to make the Philippines the hub of telecommunications in
South East Asia, which we hoped we were going to do and I think to a large extent we
did do. The ultimate benefit to Eastern was quite considerable, it enormously increased
cash flow and of course from that we financed the cables.[45]

xxx

Q Mr. Bane, you stated that you were with Eastern for 21 years?
A That's correct, yes.

Q 21 continuous years.
A With EEATC and with Eastern.

xxx

Q Mr. Bane, were there other stockholders of Class A during this 21 year period?
A The only changes that I was aware of that were made was that Attorney Jose Africa
pointed out to me, after the incorporation, that they wanted to put some of the stock, or
they would put some of the stock in the name of various companies. He also mentioned
that of course they were going to put some small, a very small minority of shares in the
names of family members. That's as far as I knew.

Q These companies, what companies were these? Or rather, excuse me sir, rather what
would be the nature of these companies?
A I don't know, I don't know what the companies were. I do know the names. I think
Ambassador Nieto's was Aerocom, was Ambassador Benedicto's Universal Molasses, I
can't remember? And then Attorney Jose Africa, I think,was Polygon.

Q Now having been associated with Manuel Nieto Jr. and Jose L. Africa and also Mr.
Benedicto for many years, did you come to know at any time during that period of
association with them whether President Marcos had any participation or control in their
stockholdings in Eastern?

MR. AFRICA: Please, objected to, your Honor, witness isn't competent. The best
witnesses would be the persons themselves, not what this witness has been told.

MR. LIM: If the witness knows, your Honor.

MR. AFRICA: But what he was told, not what is true, or what is true and correct?

A No, I was not told that President Marcos had a stockholding in Eastern. There was, of
course, speculation among ourselves as to in a vague sort of way we often wondered.
The only time that I actually knew that President Marcos had a significant stockholding in
Eastern was when, after sequestration, Ambassador Nieto went on to television and
stated on television that I think first of all he stated something about Philcomsat POTC
and he then stated on television that President Marcos owned 40% of the stock of
Eastern. That's the only time that I was, I had any direct, shall we say, or had been
directly informed by television of course that President Marcos was a stockholder.[46]

In the 2006 case of Yuchengco v. Sandiganbayan,[47] this Court overturned the ruling of
the Sandiganbayans Partial Decision and held that the testimonies through depositions
of Campos, Gapud and de Guzman established the Marcoses beneficial ownership of
Prime Holding Incorporated (PHI). The Court ruled that the testimonies of Campos,
Gapud, and de Guzman, persons who actually participated in the formation and early
years of operation of PHI, constitute evidence that directly addresses the critical
issue.[48]

In this case, the deponent Maurice V. Bane was the Executive Vice-President and
Treasurer of ETPI from 1974 until his retirement in 1987. Maurice V. Bane had personal
knowledge of and involvement in the circumstances leading to the formation of ETPI in
1974, which is crucial to petitioners allegation that private respondents interest in ETPI
rightfully belongs to the Government. To dismiss the Bane deposition as inadmissible
based on the tenuous ground that there was no actual consolidation of cases is to
disregard the obvious fact that the Bane deposition was taken in CIVIL CASE NO. 0009
(Incident Case No. 0130 and G.R. No. 107789) and that all the defendants (now private
respondents) in Civil Case No. 0009 were duly notified of the scheduled deposition-
taking.

Although petitioner, in its formal offer of evidence in Civil Case No. 0009, inadvertently
omitted the deposition of Maurice V. Bane, petitioner thereafter filed an urgent motion
praying that it be allowed to introduce as additional evidence the deposition of Maurice
V. Bane. The Sandiganbayan should have granted this motion or the succeeding Motion
to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice V. Bane) filed on 16
November 2001. As held in the 1997 case of Republic v. Sandiganbayan (Third Division):
[49]

In all cases involving alleged ill-gotten wealth brought by or against the Presidential
Commission on Good Government, it is the policy of this Court to set aside technicalities
and formalities that serve merely to delay or impede their judicious resolution. This Court
prefers to have such cases resolved on the merits before the Sandiganbayan. Substantial
justice to all parties, not mere legalisms or perfection of form, should now be relentlessly
pursued. Eleven years have passed since the government started its search for and
reversion of such alleged ill-gotten wealth. The definitive resolution of such cases on the
merits is thus long overdue. If there is adequate proof of illegal acquisition,
accumulation, misappropriation, fraud or illicit conduct, let it be brought out now.[50]

Accordingly, the Sandiganbayan Resolution dated 7 February 2002 should be reversed

and set aside. The deposition of Maurice V. Bane taken on 23 to 24 October 1996,
together with the accompanying documentary exhibits, should be admitted as part of
petitioners evidence. I vote to GRANT the petition and REMAND this case to the
Sandiganbayan for further proceedings.

--------------------------------------------------------------------------------
[1] Under Rule 65 of the 1997 Rules of Civil Procedure.

[2] See Petition for Certiorari, dated 14 March 2002, p. 12; rollo, p. 13.

[3] Upon his demise, Jose L. Africa was eventually substituted by his heirs as defendants
in Civil Case No. 0009. Victor Africa is one of the legal epresentatives/forced heirs of
deceased respondent Jose L. Africa; Sandiganbayan Resolution issued on 1 April 1998, p.
6; rollo, p. 336.

[4] Promulgated on 15 April 1993.

[5] See Sandiganbayan Resolution issued on 1 April 1998, p. 5; rollo, p. 335; Records, pp.
6646-6649.

[6] Rollo, pp. 68-71.

[7] Id. at 322-329.

[8] See Sandiganbayan Resolution issued on 1 April 1998, p. 6; rollo, p. 336.

[9] Sandiganbayan Resolution issued on 21 August 2000, pp. 3-4; rollo, pp. 354-355.

[10] Sandiganbayan Resolution issued on 3 April 2001, p. 2; rollo, p. 358.

[11] Rollo, pp. 63, 65-67.

[12] Justice Brion's modified draft Decision, p. 2.

[13] Comment cum Opposition, filed on 18 July 2008, SB records (Civil Case No. 0009),
Volume 66, pp. 126-136; Rejoinder, filed on 14 September 2009, SB records (Civil Case
No. 0009), Volume 67, pp. 206-210; Comment cum Opposition, filed on 14 September
2009, SB records (Civil Case No. 0009), Volume 67, pp. 212-213; Memorandum, filed on 8
February 2010, SB records (Civil Case No. 0009), Volume 68, pp. 62-73.
[14] Offer of Evidence filed on 14 May 2008, SB records (Civil Case No. 0009), Volume 65,
pp. 539-545; Supplemental Offer of Evidence filed on 4 September 2008, SB records
(Civil Case No. 0009), Volume 66, pp. 242-243.

[15] Underscoring in the original.

[16] Underscoring in the original; boldfacing supplied.

[17] SB Records (Civil Case No. 0009), Volume 18, pp. 6646-6649. (Boldfacing supplied)

[18] 2 V. Francisco, The Revised Rules of Court in the Philippines 352-353 (1973).

[19] See Republic of the Philippines v. Sandiganbayan, G.R. Nos. 166859, 169203 &
180702, 12 April 2011; Raquel-Santos v. Court of Appeals, G.R. Nos. 174986, 175071 &
181415, 7 July 2009, 592 SCRA 169; Grefalde v. Sandiganbayan, 401 Phil. 553 (2000).

[20] Active Wood Products, Co. Inc. v. Court of Appeals, 260 Phil. 825 (1990). Section 5,
Rule 9 of the Internal Rules of the Supreme Court reads:

SEC. 5. Consolidation of cases. The Court may order the consolidation of cases
involving common questions of law or fact. The Chief Justice shall assign the
consolidated cases to the Member-in-Charge to whom the case having the lower or
lowest docket number has been raffled, subject to equalization of cases load by raffle.
The Judicial Records Office shall see to it that (a) the rollos of the consolidated cases are
joined together to prevent the loss, misplacement or detachment of any of them; and (b)
the cover of each rollo indicates the G.R. or UDK number of the case with which the
former is consolidated.

The Member-in-Charge who finds after study that the cases do not involve common
questions of law or of fact may request the Court to have the case or cases returned to
the original Member-in-Charge.

The Sandiganbayan has a similar rule regarding the consolidation of cases. Section 2,
Rule XII of the Revised Internal Rules of Sandiganbayan (A.M. No. 02-6-07-SB dated 28
August 2002) provides:

SEC. 2. Consolidation of Cases.- Cases arising from the same incident or series of
incidents, or involving common questions of fact and law, may be consolidated in the
Division to which the case bearing the lowest docket number is raffled.

(a) Before Cases Are Raffled - Should the propriety of consolidation appear upon the
filing of the cases concerned as determined by the Raffle Committee, all such cases shall
be consolidated and considered as one case for purposes of the raffle and inventory of
pending cases assigned to each of the Divisions.

(b) After Cases Are Raffled - Should the propriety of such consolidation become apparent
only after the cases are raffled, consolidation may be effected upon written motion of a
litigant concerned filed with the Division taking cognizance of the case to be
consolidated. If the motion is granted, consolidation shall be made to the Division in
which the case with the lowest docket number is assigned. The Division to which the
cases are consolidated shall transfer to the Division from which the consolidated cases
came, an equivalent number of cases of approximately the same age, nature and stage
in the proceedings, with proper notice to the parties in said cases.

[21] It is even held in American jurisprudence that [w]here two or more actions are
consolidated, a deposition taken in one of them prior to the consolidation is admissible
on the trial of the consolidated action. (1 C.J.S. 1375)

[22] Philippine National Bank v. Gotesco Tyan Ming Development, Inc., G.R. No. 183211,
5 June 2009, 588 SCRA 798; Republic of the Philippines v. Court of Appeals, 451 Phil. 497
(2003).
[23] G.R. No. 172393, 20 October 2010, 634 SCRA 107.

[24] G.R. Nos. 182382-83, 24 February 2010, 613 SCRA 528.

[25] Id. at 535-536.

[26] Now Rule 23 of the 1997 Rules of Civil Procedure.

[27] Justice Brion's modified draft Decision, p. 47.

[28] G.R. Nos. 138701-02, 17 October 2006, 504 SCRA 618, 634.

[29] Mendoza v. Court of Appeals, 240 Phil. 561 (1987).

[30] 357 Phil. 452 (1998).

[31] Id. at 478-479.

[32] Transcript of the notes on the Deposition of Maurice V. Bane, p. 10; rollo, p. 89.

[33] Transcript of the notes on the Deposition of Maurice V. Bane, p. 8; rollo, p. 87.

[34] Sec. 4. [Rule 23] Use of depositions. At the trial or upon the hearing of a motion or
an interlocutory proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present or represented at
the taking of the deposition or who had due notice thereof, in accordance with any one of
the following provisions:

xxx

(c) The deposition of a witness, whether or not a party, may be used by any party for any
purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a
distance more than one hundred (100) kilometers from the place of trial or hearing, or is
out of the Philippines, unless it appears that his absence was procured by the party
offering the deposition; (Emphasis supplied)

[35 ]Transcript of the notes on the Deposition of Maurice V. Bane, pp. 8-9; rollo, pp. 87-
88.

[36]
AFFIDAVIT

I, MAURICE V. BANE, of legal age married, a British [words missing from photocopy], and
with business address at Eastern Telecommunications [missing words] Inc., Telecoms
Plaza, Sen. Gil Puyat Avenue, Makati, Manila, after being duly sworn, do hereby depose
and say,

1. I am presently the Senior Adviser of Eastern Telecommunications Philippines, Inc.

(ETPI), a Philippine corporation duly registered and authorized to engage in the
business of telecommunications in the Philippines since 1974;

2. Until my retirement, I served as the representative of Cable and Wireless, Ltd.,

(C&W) a British company that presently owns 40% of the outstanding capital stocks of
ETPI, C&W, through its wholly owned subsidiary, Eastern Extension Australasia and
China Telephone Co., (EEATC), was formerly the sole owner and operator of the
franchise that is now owned and held by ETPI. The company has been operating in the
Philippines since 1880 initially under a royal decree from Spain. Following the Pacific War
in 1945, the franchise was renewed in 1952 by the Philippine Government under then
President Elpidio Quirino;
3. In the late 60's the possibility of establishing earth satellite stations in the Philippines
arose as a result of heavy pressure from the U.S. Military who were to be its major users.
Many companies and consortiums, including EEATC bidded for the contract. Then
President Marcos finally awarded the contract together with the franchise to the
Philippines Overseas Telecommunications Corp. (POTC) which at that time was
relatively unknown in the international communications industry. The prime movers of
POTC were Messrs. Potenciano Ilusorio, Honorio Poblador, Manuel H. Nieto, Jr. and
Roberto S. Benedicto, who were all known Marcos associates. This group became very
much a part of the Philippines telecommunications scene.

4. EEATC forged a partnership with POTC for the establishment of a tropospheric

scatter system communications with Taiwan. A franchise, Oceanic Wireless Network, Inc.
was purchased and all government approvals were obtained by Messrs. Nieto and
Ilusorio. The system was installed and during its inauguration, the principal guests were
President and Mrs. Marcos, showing perhaps the political influence of Nieto and Ilusorio.

5. When President Marcos declared Martial Law in September 1972, it was clear that his
grip on the country was virtually complete. C&W was fully aware of its uneasy tenure
in the Philippines. In March 1973, then Secretary of National Defense Juan Ponce Enrile
called us to a conference at Camp Crame. I attended the said meeting together with the
representatives of RCA and Globe Mackay. Secretary Enrile firmly told us that we had
until July, 1974 to organize ourselves into 60/40 corporations with Filipino majority
ownership and, if we did not comply, the Government would take the necessary action.

6. I pointed out that EEATC was not covered by the Laurel-Langley Act since we were a
British corporation with a fully constitutional franchise. Secretary Enrile said that if we
did not comply with his directive, there would be no more EEATC;

7. While we might have legal and valid grounds to contest the directive, under the
prevailing martial law restrictions we had little recourse but to comply. After considering
all economic and political factors, it was felt that some form of partnership with the POTC
group would be the most advantageous option;

8. Prior to the above, discussions had been held with Ilusorio and Poblador, who then
appeared in charge of POTC discussions were generally unsatisfactory since it was
quite hard to pin Ilusorio down and we gained the impression that they wanted us to give
them their participation in EEATC with minimal monetary consideration in return for
political protection;

9. In approximately April/May 1973, rapid changes took place in POTC. Ilusorio and
Poblador appeared to have lost their control in POTC and Nieto emerged as the
controlling figure. We learned much later that this was upon the instructions of President
Marcos. Thus, discussions concerning EEATC were continued with Nieto;

10. The time factor was important with July 1974 over the horizon and it was agreed to
call a meeting with the accounting group of SyCip, Gorres and Velayo as intermediary. At
the said meeting, we found that Atty. Jose Africa was the main representative of
Nieto/POTC. He had previously not seemed a major figure in the group although he had
attended several board meetings of Oceanic Wireless. Africa quickly spelt out the rules
that they were interested in the proposition and that we were to deal only with the DAN
group (composed of Roberto Benedicto, Jose Africa and Manuel Nieto, Jr.). We were
informed that this was at the express wish of President Marcos who had appointed their
group to control the telecommunications interests;

11. Negotiations were thereafter commenced with Mr. Eduardo M. Villanueva of SGV as
intermediary, David West and W. H. Davies were the major C&W participants. We also
requested Atty. Luciano Salazar Law Office to represent us on legal matters;
12. The figure eventually negotiated for the assets (net book value only and no good will)
was Ten Million Pesos (P10,000,000.00) on the basis of which the BAN group will put up
Six Million Pesos (P6,000,000.00). Further meetings took place to finalize the details but
Africa later informed us that they could not raise the required amount. As a compromise,
he suggested that the new corporation raise a bank loan from which C&W could be
paid. While we were not happy with this arrangement, we resigned ourselves to the fact
that we would have to accede. It was agreed that stockholders' contribution would be
Five Million Pesos (P5,000,000.00) plus a bank loan of Seven Million Pesos
(P7,000,000.00) to cover asset payment and working capital. Africa then advised that
they could only raise One Million Pesos (P1,000,000.00) and C&W could loan them Two
Million Pesos (P2,000,000.00). Again, we were unhappy but again we complied;

13. All the necessary documents, articles, by-laws and stockholders agreements were
drawn up by the Salazar Law Office. Of particular delicacy was the issue of franchise. It
was decided that the old franchise should be retained in all detail but this was to be
transferred to a new company to be called Eastern Telecommunications Philippines, Inc.
Atty. Salazar drafted the Presidential Decree for the transfer of the franchise. The draft
was personally delivered to Nieto who committed to secure President Marcos' approval
and signature. True enough, Marcos signed the P.D. Drafted by Atty. Salazar in its
entirety, without any revision or amendment. This was convincing evidence of the
political power and influence of the BAN group;

14. After complying with all the registration requirements and other government
regulations, ETPI commenced to fully operate as a telecommunications company under
its new franchise in August 1974;

15. I am executing this affidavit to attest to the truth of the foregoing facts in order to
elucidate on the events and circumstances that led to the transfer of the assets and
franchise of EEATC in favor of ETPI and the emergence of BAN group thereat.

Affiant further sayeth naught.

09 January 1991, Makati, Metro Manila.

(signed)
MAURICE V. BANE
Affiant

[37] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 16-17; rollo, pp. 95-
96.

[38] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 19-20; rollo, pp. 98-
99.

[39] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 20-21; rollo, pp. 99-
100.

[40] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 23-25; rollo, pp.
102-104.

[41] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 26-31, 33, 35; rollo,
pp. 105-110, 112, 114.

[42] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 37-41; rollo, pp.
116-120.

[43] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 47-50; rollo, pp.
126-129.

[44] AUTHORIZING THE EASTERN EXTENSION AUSTRALASIA AND CHINA TELEGRAPH

COMPANY, LIMITED TO TRANSFER THE FRANCHISE GRANTED TO THAT COMPANY UNDER
REPUBLIC ACT NO. 808, AS AMENDED BY REPUBLIC ACT NO. 5002, TO THE EASTERN
TELECOMMUNICATIONS PHILIPPINES, INC.

[45] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 56-65; rollo, pp.
135-144.

[46] Transcript of the notes on the Deposition of Maurice V. Bane, pp. 76-78; rollo, pp.
155-157.

[47] 515 Phil. 1 (2006).

[48] Id. at 46.

[49] G.R. No. 113420, 7 March 1997, 269 SCRA 316.

[50] Id. at 334.

EN BANC
[ G.R. No. 193459, February 15, 2011 ]
MA. MERCEDITAS N. GUTIERREZ PETITIONER, VS. THE HOUSE OF REPRESENTATIVES
COMMITTEE ON JUSTICE, RISA HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAO,
EVELYN PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG
MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF
PAGBABAGO; DANILO RAMOS, SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG
PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE NATIONAL
UNION OF PEOPLE'S LAWYERS (NUPL); FERDINAND R. GAITE, CHAIRPERSON,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE); AND JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO
STUDENTS (LFS), RESPONDENTS.

FELICIANO BELMONTE, JR., RESPONDENT-INTERVENOR.

DECISION

CARPIO MORALES, J.:

The Ombudsman, Ma. Merceditas Gutierrez (petitioner), challenges via petition for
certiorari and prohibition the Resolutions of September 1 and 7, 2010 of the House of
Representatives Committee on Justice (public respondent).

Before the 15th Congress opened its first session on July 26, 2010 (the fourth Monday of
July, in accordance with Section 15, Article VI of the Constitution) or on July 22, 2010,
private respondents Risa Hontiveros-Baraquel, Danilo Lim, and spouses Felipe and Evelyn
Pestao (Baraquel group) filed an impeachment complaint[1] against petitioner, upon
the endorsement of Party-List Representatives Arlene Bag-ao and Walden Bello.[2]

A day after the opening of the 15th Congress or on July 27, 2010, Atty. Marilyn Barua-Yap,
Secretary General of the House of Representatives, transmitted the impeachment
complaint to House Speaker Feliciano Belmonte, Jr.[3] who, by Memorandum of August 2,
2010, directed the Committee on Rules to include it in the Order of Business.[4]

On August 3, 2010, private respondents Renato Reyes, Jr., Mother Mary John Mananzan,
Danilo Ramos, Edre Olalia, Ferdinand Gaite and James Terry Ridon (Reyes group) filed
another impeachment complaint[5] against petitioner with a resolution of endorsement
by Party-List Representatives Neri Javier Colmenares, Teodoro Casio, Rafael Mariano,
Luzviminda Ilagan, Antonio Tinio and Emerenciana de Jesus.[6] On even date, the House
of Representatives provisionally adopted the Rules of Procedure in Impeachment
Proceedings of the 14th Congress. By letter still of even date,[7] the Secretary General
transmitted the Reyes group's complaint to Speaker Belmonte who, by Memorandum of
August 9, 2010,[8] also directed the Committee on Rules to include it in the Order of
Business.

On August 10, 2010, House Majority Leader Neptali Gonzales II, as chairperson of the
Committee on Rules,[9] instructed Atty. Artemio Adasa, Jr., Deputy Secretary General for
Operations, through Atty. Cesar Pareja, Executive Director of the Plenary Affairs
Department, to include the two complaints in the Order of Business,[10] which was
complied with by their inclusion in the Order of Business for the following day, August 11,
2010.

On August 11, 2010 at 4:47 p.m., during its plenary session, the House of
Representatives simultaneously referred both complaints to public respondent.[11]

After hearing, public respondent, by Resolution of September 1, 2010, found both

complaints sufficient in form, which complaints it considered to have been referred to it
at exactly the same time.

Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th Congress

was published on September 2, 2010.

On September 6, 2010, petitioner tried to file a motion to reconsider the September 1,

2010 Resolution of public respondent. Public respondent refused to accept the motion,
however, for prematurity; instead, it advised petitioner to await the notice for her to file
an answer to the complaints, drawing petitioner to furnish copies of her motion to each
of the 55 members of public respondent.

After hearing, public respondent, by Resolution of September 7, 2010, found the two
complaints, which both allege culpable violation of the Constitution and betrayal of
public trust,[12] sufficient in substance. The determination of the sufficiency of
substance of the complaints by public respondent, which assumed hypothetically the
truth of their allegations, hinged on the issue of whether valid judgment to impeach
could be rendered thereon. Petitioner was served also on September 7, 2010 a notice
directing her to file an answer to the complaints within 10 days.[13]

Six days following her receipt of the notice to file answer or on September 13, 2010,
petitioner filed with this Court the present petition with application for injunctive reliefs.
The following day or on September 14, 2010, the Court En Banc RESOLVED to direct the
issuance of a status quo ante order[14] and to require respondents to comment on the
petition in 10 days. The Court subsequently, by Resolution of September 21, 2010,
directed the Office of the Solicitor General (OSG) to file in 10 days its Comment on the
petition

The Baraquel group which filed the first complaint, the Reyes group which filed the
second complaint, and public respondent (through the OSG and private counsel) filed
their respective Comments on September 27, 29 and 30, 2010.

Speaker Belmonte filed a Motion for Leave to Intervene dated October 4, 2010 which the
Court granted by Resolution of October 5, 2010.

Under an Advisory[15] issued by the Court, oral arguments were conducted on October 5
and 12, 2010, followed by petitioner's filing of a Consolidated Reply of October 15, 2010
and the filing by the parties of Memoranda within the given 15-day period.

The petition is harangued by procedural objections which the Court shall first resolve.

Respondents raise the impropriety of the remedies of certiorari and prohibition. They
argue that public respondent was not exercising any judicial, quasi-judicial or ministerial
function in taking cognizance of the two impeachment complaints as it was exercising a
political act that is discretionary in nature,[16] and that its function is inquisitorial that is
akin to a preliminary investigation.[17]

These same arguments were raised in Francisco, Jr. v. House of Representatives.[18] The
argument that impeachment proceedings are beyond the reach of judicial review was
debunked in this wise:

The major difference between the judicial power of the Philippine Supreme Court and
that of the U.S. Supreme Court is that while the power of judicial review is only impliedly
granted to the U.S. Supreme Court and is discretionary in nature, that granted to the
Philippine Supreme Court and lower courts, as expressly provided for in the Constitution,
is not just a power but also a duty, and it was given an expanded definition to include the
power to correct any grave abuse of discretion on the part of any government branch or
instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine
Constitution with respect to the power of the House of Representatives over
impeachment proceedings. While the U.S. Constitution bestows sole power of
impeachment to the House of Representatives without limitation, our Constitution,
though vesting in the House of Representatives the exclusive power to initiate
impeachment cases, provides for several limitations to the exercise of such power as
embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include
the manner of filing, required vote to impeach, and the one year bar on the
impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their
finality and may also lead to conflicts between Congress and the judiciary. Thus, they call
upon this Court to exercise judicial statesmanship on the principle that "whenever
possible, the Court should defer to the judgment of the people expressed legislatively,
recognizing full well the perils of judicial willfulness and pride."

But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave
the matter of impeachment to the sole discretion of Congress. Instead, it provided for
certain well-defined limits, or in the language of Baker v. Carr, "judicially discoverable
standards" for determining the validity of the exercise of such discretion, through the
power of judicial review.

xxxx

There is indeed a plethora of cases in which this Court exercised the power of judicial
review over congressional action. Thus, in Santiago v. Guingona, Jr., this Court ruled that
it is well within the power and jurisdiction of the Court to inquire whether the Senate or
its officials committed a violation of the Constitution or grave abuse of discretion in the
exercise of their functions and prerogatives. In Taada v. Angara, in seeking to nullify an
act of the Philippine Senate on the ground that it contravened the Constitution, it held
that the petition raises a justiciable controversy and that when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v.
Pineda, this Court declared null and void a resolution of the House of Representatives
withdrawing the nomination, and rescinding the election, of a congressman as a member
of the House Electoral Tribunal for being violative of Section 17, Article VI of the
Constitution. In Coseteng v. Mitra, it held that the resolution of whether the House
representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the
Constitution is subject to judicial review. In Daza v. Singson, it held that the act of the
House of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Taada v. Cuenco, it held that although
under the Constitution, the legislative power is vested exclusively in Congress, this does
not detract from the power of the courts to pass upon the constitutionality of acts of
Congress. In Angara v. Electoral Commission, it ruled that confirmation by the National
Assembly of the election of any member, irrespective of whether his election is
contested, is not essential before such member-elect may discharge the duties and enjoy
the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial
review over impeachment proceedings would upset the system of checks and balances.
Verily, the Constitution is to be interpreted as a whole and "one section is not to be
allowed to defeat another." Both are integral components of the calibrated system of
independence and interdependence that insures that no branch of government act
beyond the powers assigned to it by the Constitution.[19] (citations omitted; italics in the
original; underscoring supplied)

Francisco characterizes the power of judicial review as a duty which, as the expanded
certiorari jurisdiction[20] of this Court reflects, includes the power to "determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government."[21]

In the present case, petitioner invokes the Court's expanded certiorari jurisdiction, using
the special civil actions of certiorari and prohibition as procedural vehicles. The Court
finds it well-within its power to determine whether public respondent committed a
violation of the Constitution or gravely abused its discretion in the exercise of its
functions and prerogatives that could translate as lack or excess of jurisdiction, which
would require corrective measures from the Court.

Indubitably, the Court is not asserting its ascendancy over the Legislature in this
instance, but simply upholding the supremacy of the Constitution as the repository of the
sovereign will.[22]

Respondents do not seriously contest all the essential requisites for the exercise of
judicial review, as they only assert that the petition is premature and not yet ripe for
adjudication since petitioner has at her disposal a plain, speedy and adequate remedy in
the course of the proceedings before public respondent. Public respondent argues that
when petitioner filed the present petition[23] on September 13, 2010, it had not gone
beyond the determination of the sufficiency of form and substance of the two
complaints.

An aspect of the "case-or-controversy" requirement is the requisite

of ripeness.[24] The question of ripeness is especially relevant in light of the direct,
adverse effect on an individual by the challenged conduct.[25] In the present petition,
there is no doubt that questions on, inter alia, the validity of the simultaneous referral of
the two complaints and on the need to publish as a mode of promulgating the Rules of
Procedure in Impeachment Proceedings of the House (Impeachment Rules) present
constitutional vagaries which call for immediate interpretation.

The unusual act of simultaneously referring to public respondent two impeachment

complaints presents a novel situation to invoke judicial power. Petitioner cannot thus be
considered to have acted prematurely when she took the cue from the constitutional
limitation that only one impeachment proceeding should be initiated against an
impeachable officer within a period of one year.

And so the Court proceeds to resolve the substantive issue whether public
respondent committed grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing its two assailed Resolutions. Petitioner basically anchors her claim
on alleged violation of the due process clause (Art. III, Sec. 1) and of the one-year bar
provision (Art. XI, Sec 3, par. 5) of the Constitution.

Due process of law

Petitioner alleges that public respondent's chairperson, Representative Niel Tupas, Jr.
(Rep. Tupas), is the subject of an investigation she is conducting, while his father, former
Iloilo Governor Niel Tupas, Sr., had been charged by her with violation of the Anti-Graft
and Corrupt Practices Act before the Sandiganbayan. To petitioner, the actions taken by
her office against Rep. Tupas and his father influenced the proceedings taken by public
respondent in such a way that bias and vindictiveness played a big part in arriving at the
finding of sufficiency of form and substance of the complaints against her.

The Court finds petitioner's allegations of bias and vindictiveness bereft of merit, there
being hardly any indication thereof. Mere suspicion of partiality does not suffice.[26]

The act of the head of a collegial body cannot be considered as that of the entire body
itself. So GMCR, Inc. v. Bell Telecommunications Phils.[27] teaches:

First. We hereby declare that the NTC is a collegial body requiring a majority vote out of
the three members of the commission in order to validly decide a case or any incident
therein. Corollarily, the vote alone of the chairman of the commission, as in this case,
the vote of Commissioner Kintanar, absent the required concurring vote coming from the
rest of the membership of the commission to at least arrive at a majority decision, is not
sufficient to legally render an NTC order, resolution or decision.

Simply put, Commissioner Kintanar is not the National Telecommunications Commission.

He alone does not speak and in behalf of the NTC. The NTC acts through a three-man
body x x x. [28]

In the present case, Rep. Tupas, public respondent informs, did not, in fact, vote and
merely presided over the proceedings when it decided on the sufficiency of form and
substance of the complaints.[29]

Even petitioner's counsel conceded during the oral arguments that there are no grounds
to compel the inhibition of Rep. Tupas.

JUSTICE CUEVAS:

Well, the Committee is headed by a gentleman who happened to be a respondent in the

charges that the Ombudsman filed. In addition to that[,] his father was likewise a
respondent in another case. How can he be expected to act with impartiality, in fairness
and in accordance with law under that matter, he is only human we grant him that
benefit.

JUSTICE MORALES:

Is he a one-man committee?

JUSTICE CUEVAS:

He is not a one-man committee, Your Honor, but he decides.

JUSTICE MORALES:

Do we presume good faith or we presume bad faith?

JUSTICE CUEVAS:

We presume that he is acting in good faith, Your Honor, but then (interrupted)

JUSTICE MORALES:
So, that he was found liable for violation of the Anti Graft and Corrupt Practices Act, does
that mean that your client will be deprived of due process of law?

JUSTICE CUEVAS:

No, what we are stating, Your Honor, is that expectation of a client goes with the
Ombudsman, which goes with the element of due process is the lack of impartiality that
may be expected of him.

JUSTICE MORALES:

But as you admitted the Committee is not a one-man committee?

JUSTICE CUEVAS:

That is correct, Your Honor.

JUSTICE MORALES:

So, why do you say then that there is a lack of impartiality?

JUSTICE CUEVAS:

Because if anything before anything goes (sic) he is the presiding officer of the
committee as in this case there were objections relative to the existence of the
implementing rules not heard, there was objection made by Congressman Golez to the
effect that this may give rise to a constitutional crisis.

JUSTICE MORALES:

That called for a voluntary inhibition. Is there any law or rule you can cite which makes it
mandatory for the chair of the committee to inhibit given that he had previously been
found liable for violation of a law[?]

JUSTICE CUEVAS:

There is nothing, Your Honor. In our jurisprudence which deals with the situation
whereby with that background as the material or pertinent antecedent that there could
be no violation of the right of the petitioner to due process. What is the effect of notice,
hearing if the judgment cannot come from an impartial adjudicator.[30] (emphasis and
underscoring supplied)

Petitioner contends that the "indecent and precipitate haste" of public respondent in
finding the two complaints sufficient in form and substance is a clear indication of bias,
she pointing out that it only took public respondent five minutes to arrive thereat.

An abbreviated pace in the conduct of proceedings is not per se an indication of bias,

however. So Santos-Concio v. Department of Justice[31] holds:

Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se

be instantly attributed to an injudicious performance of functions. For one's prompt
dispatch may be another's undue haste. The orderly administration of justice remains as
the paramount and constant consideration, with particular regard of the circumstances
peculiar to each case.

The presumption of regularity includes the public officer's official actuations in all phases
of work. Consistent with such presumption, it was incumbent upon petitioners to present
contradictory evidence other than a mere tallying of days or numerical calculation. This,
petitioners failed to discharge. The swift completion of the Investigating Panel's initial
task cannot be relegated as shoddy or shady without discounting the presumably regular
performance of not just one but five state prosecutors.[32] (italics in the original;
emphasis and underscoring supplied)

Petitioner goes on to contend that her participation in the determination of sufficiency of

form and substance was indispensable. As mandated by the Impeachment Rules,
however, and as, in fact, conceded by petitioner's counsel, the participation of the
impeachable officer starts with the filing of an answer.

JUSTICE MORALES:

Is it not that the Committee should first determine that there is sufficiency in form and
substance before she is asked to file her answer (interrupted)

JUSTICE CUEVAS:

That is correct, Your Honor.

JUSTICE MORALES:

During which she can raise any defenses she can assail the regularity of the proceedings
and related irregularities?

JUSTICE CUEVAS:

Yes. We are in total conformity and in full accord with that statement, Your Honor,
because it is only after a determination that the complaint is sufficient in form and
substance that a complaint may be filed, Your Honor, without that but it may be asked,
how is not your action premature, Your Honor, our answer is- no, because of the other
violations involved and that is (interrupted).[33] (emphasis and underscoring supplied)

Rule III(A) of the Impeachment Rules of the 15th Congress reflects the impeachment
procedure at the Committee-level, particularly Section 5[34] which denotes that
petitioner's initial participation in the impeachment proceedings - the opportunity to file
an Answer - starts after the Committee on Justice finds the complaint sufficient in form
and substance. That the Committee refused to accept petitioner's motion for
reconsideration from its finding of sufficiency of form of the impeachment complaints is
apposite, conformably with the Impeachment Rules.

Petitioner further claims that public respondent failed to ascertain the sufficiency of form
and substance of the complaints on the basis of the standards set by the Constitution
and its own Impeachment Rules.[35]

The claim fails.

The determination of sufficiency of form and substance of an impeachment complaint is

an exponent of the express constitutional grant of rule-making powers of the House of
Representatives which committed such determinative function to public respondent. In
the discharge of that power and in the exercise of its discretion, the House has
formulated determinable standards as to the form and substance of an impeachment
complaint. Prudential considerations behoove the Court to respect the compliance by
the House of its duty to effectively carry out the constitutional purpose, absent any
contravention of the minimum constitutional guidelines.
Contrary to petitioner's position that the Impeachment Rules do not provide for
comprehensible standards in determining the sufficiency of form and substance, the
Impeachment Rules are clear in echoing the constitutional requirements and providing
that there must be a "verified complaint or resolution,"[36] and that the substance
requirement is met if there is "a recital of facts constituting the offense charged and
determinative of the jurisdiction of the committee."[37]

Notatu dignum is the fact that it is only in the Impeachment Rules where a determination
of sufficiency of form and substance of an impeachment complaint is made necessary.
This requirement is not explicitly found in the organic law, as Section 3(2), Article XI of
the Constitution basically merely requires a "hearing."[38] In the discharge of its
constitutional duty, the House deemed that a finding of sufficiency of form and
substance in an impeachment complaint is vital "to effectively carry out" the
impeachment process, hence, such additional requirement in the Impeachment Rules.

Petitioner urges the Court to look into the narration of facts constitutive of the offenses
vis--vis her submissions disclaiming the allegations in the complaints.

This the Court cannot do.

Francisco instructs that this issue would "require the Court to make a determination of
what constitutes an impeachable offense. Such a determination is a purely political
question which the Constitution has left to the sound discretion of the legislature. Such
an intent is clear from the deliberations of the Constitutional Commission. x x x x
Clearly, the issue calls upon this court to decide a non-justiciable political question which
is beyond the scope of its judicial power[.]"[39] Worse, petitioner urges the Court to
make a preliminary assessment of certain grounds raised, upon a hypothetical admission
of the facts alleged in the complaints, which involve matters of defense.

In another vein, petitioner, pursuing her claim of denial of due process, questions the
lack of or, more accurately, delay in the publication of the Impeachment Rules.

To recall, days after the 15th Congress opened on July 26, 2010 or on August 3, 2010,
public respondent provisionally adopted the Impeachment Rules of the 14th Congress
and thereafter published on September 2, 2010 its Impeachment Rules, admittedly
substantially identical with that of the 14th Congress, in two newspapers of general
circulation.[40]

Citing Taada v. Tuvera,[41] petitioner contends that she was deprived of due process
since the Impeachment Rules was published only on September 2, 2010 a day after
public respondent ruled on the sufficiency of form of the complaints. She likewise tacks
her contention on Section 3(8), Article XI of the Constitution which directs that "Congress
shall promulgate its rules on impeachment to effectively carry out the purpose of this
section."

Public respondent counters that "promulgation" in this case refers to "the publication of
rules in any medium of information, not necessarily in the Official Gazette or newspaper
of general circulation."[42]

Differentiating Neri v. Senate Committee on Accountability of Public Officers and

Investigations[43] which held that the Constitution categorically requires publication of
the rules of procedure in legislative inquiries, public respondent explains that the
Impeachment Rules is intended to merely enable Congress to effectively carry out the
purpose of Section 3(8), Art. XI of Constitution.

Black's Law Dictionary broadly defines promulgate as

To publish; to announce officially; to make public as important or obligatory. The formal

act of announcing a statute or rule of court. An administrative order that is given to
cause an agency law or regulation to become known or obligatory.[44] (emphasis
supplied)

While "promulgation" would seem synonymous to "publication," there is a statutory

difference in their usage.

The Constitution notably uses the word "promulgate" 12 times.[45] A number of those
instances involves the promulgation of various rules, reports and issuances emanating
from Congress, this Court, the Office of the Ombudsman as well as other constitutional
offices.

To appreciate the statutory difference in the usage of the terms "promulgate" and
"publish," the case of the Judiciary is in point. In promulgating rules concerning the
protection and enforcement of constitutional rights, pleading, practice and procedure in
all courts, the Court has invariably required the publication of these rules for their
effectivity. As far as promulgation of judgments is concerned, however, promulgation
means "the delivery of the decision to the clerk of court for filing and publication."[46]

Section 4, Article VII of the Constitution contains a similar provision directing Congress to
"promulgate its rules for the canvassing of the certificates" in the presidential and vice
presidential elections. Notably, when Congress approved its canvassing rules for the
May 14, 2010 national elections on May 25, 2010,[47] it did not require the publication
thereof for its effectivity. Rather, Congress made the canvassing rules effective upon its
adoption.

In the case of administrative agencies, "promulgation" and "publication" likewise take on

different meanings as they are part of a multi-stage procedure in quasi-legislation. As
detailed in one case,[48] the publication of implementing rules occurs after their
promulgation or adoption.

Promulgation must thus be used in the context in which it is generally understood--that

is, to make known. Generalia verba sunt generaliter inteligencia. What is generally
spoken shall be generally understood. Between the restricted sense and the general
meaning of a word, the general must prevail unless it was clearly intended that the
restricted sense was to be used.[49]

Since the Constitutional Commission did not restrict "promulgation" to "publication," the
former should be understood to have been used in its general sense. It is within the
discretion of Congress to determine on how to promulgate its Impeachment Rules, in
much the same way that the Judiciary is permitted to determine that to promulgate a
decision means to deliver the decision to the clerk of court for filing and publication.

It is not for this Court to tell a co-equal branch of government how to promulgate when
the Constitution itself has not prescribed a specific method of promulgation. The Court is
in no position to dictate a mode of promulgation beyond the dictates of the Constitution.

Publication in the Official Gazette or a newspaper of general circulation is but one

avenue for Congress to make known its rules. Jurisprudence emphatically teaches that

x x x in the absence of constitutional or statutory guidelines or specific rules, this Court

is devoid of any basis upon which to determine the legality of the acts of the Senate
relative thereto. On grounds of respect for the basic concept of separation of powers,
courts may not intervene in the internal affairs of the legislature; it is not within the
province of courts to direct Congress how to do its work. In the words of Justice
Florentino P. Feliciano, this Court is of the opinion that where no specific, operable norms
and standards are shown to exist, then the legislature must be given a real and effective
opportunity to fashion and promulgate as well as to implement them, before the courts
may intervene.[50] (italics in the original; emphasis and underscoring supplied; citations
omitted)
Had the Constitution intended to have the Impeachment Rules published, it could have
stated so as categorically as it did in the case of the rules of procedure in legislative
inquiries, per Neri. Other than "promulgate," there is no other single formal term in the
English language to appropriately refer to an issuance without need of it being published.

IN FINE, petitioner cannot take refuge in Neri since inquiries in aid of legislation under
Section 21, Article VI of the Constitution is the sole instance in the Constitution where
there is a categorical directive to duly publish a set of rules of procedure. Significantly
notable in Neri is that with respect to the issue of publication, the Court anchored its
ruling on the 1987 Constitution's directive, without any reliance on or reference to the
1986 case of Taada v. Tuvera.[51] Taada naturally could neither have interpreted a
forthcoming 1987 Constitution nor had kept a tight rein on the Constitution's intentions
as expressed through the allowance of either a categorical term or a general sense of
making known the issuances.

From the deliberations of the Constitutional Commission, then Commissioner, now retired
Associate Justice Florenz Regalado intended Section 3(8), Article XI to be the vehicle for
the House to fill the gaps in the impeachment process.

MR. REGALADO. Mr. Presiding Officer, I have decided to put in an additional section
because, for instance, under Section 3 (2), there is mention of indorsing a verified
complaint for impeachment by any citizen alleging ultimate facts constituting a ground
or grounds for impeachment. In other words, it is just like a provision in the rules of
court. Instead, I propose that this procedural requirement, like indorsement of a
complaint by a citizen to avoid harassment or crank complaints, could very well be taken
up in a new section 4 which shall read as follows: THE CONGRESS SHALL PROMULGATE
ITS RULES ON IMPEACHMENT TO EFFECTIVELY CARRY OUT THE PURPOSES THEREOF. I
think all these other procedural requirements could be taken care of by the Rules of
Congress.[52] (emphasis and underscoring supplied)

The discussion clearly rejects the notion that the impeachment provisions are not self-
executing. Section 3(8) does not, in any circumstance, operate to suspend the entire
impeachment mechanism which the Constitutional Commission took pains in designing
even its details.

As against constitutions of the past, modern constitutions have been generally drafted
upon a different principle and have often become in effect extensive codes of laws
intended to operate directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has evolved into one more
like that of a legislative body. Hence, unless it is expressly provided that a legislative act
is necessary to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional provisions are
treated as requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law. This can be
cataclysmic. That is why the prevailing view is, as it has always been, that --

. . . in case of doubt, the Constitution should be considered self-executing rather than

non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed implementing statute.
[53] (emphasis and underscoring supplied)

Even assuming arguendo that publication is required, lack of it does not nullify the
proceedings taken prior to the effectivity of the Impeachment Rules which faithfully
comply with the relevant self-executing provisions of the Constitution. Otherwise, in
cases where impeachment complaints are filed at the start of each Congress, the
mandated periods under Section 3, Article XI of the Constitution would already run or
even lapse while awaiting the expiration of the 15-day period of publication prior to the
effectivity of the Impeachment Rules. In effect, the House would already violate the
Constitution for its inaction on the impeachment complaints pending the completion of
the publication requirement.

Given that the Constitution itself states that any promulgation of the rules on
impeachment is aimed at "effectively carry[ing] out the purpose" of impeachment
proceedings, the Court finds no grave abuse of discretion when the House deemed it
proper to provisionally adopt the Rules on Impeachment of the 14th Congress, to meet
the exigency in such situation of early filing and in keeping with the "effective"
implementation of the "purpose" of the impeachment provisions. In other words, the
provisional adoption of the previous Congress' Impeachment Rules is within the power of
the House to promulgate its rules on impeachment to effectively carry out the avowed
purpose.

Moreover, the rules on impeachment, as contemplated by the framers of the

Constitution, merely aid or supplement the procedural aspects of impeachment. Being
procedural in nature, they may be given retroactive application to pending actions. "It is
axiomatic that the retroactive application of procedural laws does not violate any right of
a person who may feel that he is adversely affected, nor is it constitutionally
objectionable. The reason for this is that, as a general rule, no vested right may attach
to, nor arise from, procedural laws."[54] In the present case, petitioner fails to allege
any impairment of vested rights.

It bears stressing that, unlike the process of inquiry in aid of legislation where the rights
of witnesses are involved, impeachment is primarily for the protection of the people as a
body politic, and not for the punishment of the offender.[55]

Even Neri concedes that the unpublished rules of legislative inquiries were not
considered null and void in its entirety. Rather,

x x x [o]nly those that result in violation of the rights of witnesses should be considered
null and void, considering that the rationale for the publication is to protect the rights of
witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation,
orders and proceedings are considered valid and effective.[56] (emphasis and
underscoring supplied)

Petitioner in fact does not deny that she was fully apprised of the proper procedure. She
even availed of and invoked certain provisions[57] of the Impeachment Rules when she,
on September 7, 2010, filed the motion for reconsideration and later filed the present
petition. The Court thus finds no violation of the due process clause.

The one-year bar rule

Article XI, Section 3, paragraph (5) of the Constitution reads: "No impeachment
proceedings shall be initiated against the same official more than once within a period of
one year."

Petitioner reckons the start of the one-year bar from the filing of the first impeachment
complaint against her on July 22, 2010 or four days before the opening on July 26, 2010
of the 15th Congress. She posits that within one year from July 22, 2010, no second
impeachment complaint may be accepted and referred to public respondent.

On the other hand, public respondent, respondent Reyes group and respondent-
intervenor submit that the initiation starts with the filing of the impeachment complaint
and ends with the referral to the Committee, following Francisco, but venture to
alternatively proffer that the initiation ends somewhere between the conclusion of the
Committee Report and the transmittal of the Articles of Impeachment to the Senate.
Respondent Baraquel group, meanwhile, essentially maintains that under either the
prevailing doctrine or the parties' interpretation, its impeachment complaint could
withstand constitutional scrutiny.

Contrary to petitioner's asseveration, Francisco[58] states that the term "initiate" means
to file the complaint and take initial action on it.[59] The initiation starts with the filing of
the complaint which must be accompanied with an action to set the complaint moving.
It refers to the filing of the impeachment complaint coupled with Congress' taking initial
action of said complaint. The initial action taken by the House on the complaint is the
referral of the complaint to the Committee on Justice.

Petitioner misreads the remark of Commissioner Joaquin Bernas, S.J. that "no second
verified impeachment may be accepted and referred to the Committee on Justice for
action"[60] which contemplates a situation where a first impeachment complaint had
already been referred. Bernas and Regalado, who both acted as amici curiae in
Francisco, affirmed that the act of initiating includes the act of taking initial action on the
complaint.

From the records of the Constitutional Commission, to the amicus curiae briefs of two
former Constitutional Commissioners, it is without a doubt that the term "to initiate"
refers to the filing of the impeachment complaint coupled with Congress' taking initial
action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or
endorsement of the impeachment complaint to the House Committee on Justice or, by
the filing by at least one-third[61] of the members of the House of Representatives with
the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes
clear. Once an impeachment complaint has been initiated, another impeachment
complaint may not be filed against the same official within a one year period.[62]
(emphasis and underscoring supplied)

The Court, in Francisco, thus found that the assailed provisions of the 12th Congress'
Rules of Procedure in Impeachment Proceedings Sections 16[63] and 17[64] of Rule
V thereof "clearly contravene Section 3(5) of Article XI since they g[a]ve the term
`initiate' a meaning different from filing and referral."[65]

Petitioner highlights certain portions of Francisco which delve on the relevant records of
the Constitutional Commission, particularly Commissioner Maambong's statements[66]
that the initiation starts with the filing of the complaint.

Petitioner fails to consider the verb "starts" as the operative word. Commissioner
Maambong was all too keen to stress that the filing of the complaint indeed starts the
initiation and that the House's action on the committee report/resolution is not part of
that initiation phase.

Commissioner Maambong saw the need "to be very technical about this,"[67] for certain
exchanges in the Constitutional Commission deliberations loosely used the term, as
shown in the following exchanges.

MR. DAVIDE. That is for conviction, but not for initiation. Initiation of impeachment
proceedings still requires a vote of one-fifth of the membership of the House under the
1935 Constitution.

MR. MONSOD. A two-thirds vote of the membership of the House is required to initiate
proceedings.

MR. DAVIDE. No. for initiation of impeachment proceedings, only one-fifth vote of the
membership of the House is required; for conviction, a two-thirds vote of the
membership is required.
xxxx

MR. DAVIDE. However, if we allow one-fifth of the membership of the legislature to

overturn a report of the committee, we have here Section 3 (4) which reads:

No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.

So, necessarily, under this particular subsection, we will, in effect, disallow one-fifth of
the members of the National Assembly to revive an impeachment move by an individual
or an ordinary Member.

MR. ROMULO. Yes. May I say that Section 3 (4) is there to look towards the possibility of
a very liberal impeachment proceeding. Second, we were ourselves struggling with that
problem where we are faced with just a verified complaint rather than the signatures of
one-fifth, or whatever it is we decide, of the Members of the House. So whether to put a
period for the Committee to report, whether we should not allow the Committee to
overrule a mere verified complaint, are some of the questions we would like to be
discussed.

MR. DAVIDE. We can probably overrule a rejection by the Committee by providing that it
can be overturned by, say, one-half or a majority, or one-fifth of the members of the
legislature, and that such overturning will not amount to a refiling which is prohibited
under Section 3 (4).

Another point, Madam President. x x x[68] (emphasis and underscoring supplied)

An apparent effort to clarify the term "initiate" was made by Commissioner Teodulo
Natividad:

MR. NATIVIDAD. How many votes are needed to initiate?

MR. BENGZON. One-third.

MR. NATIVIDAD. To initiate is different from to impeach; to impeach is different from to

convict. To impeach means to file the case before the Senate.

MR. REGALADO. When we speak of "initiative," we refer here to the Articles of

Impeachment.

MR. NATIVIDAD. So, that is the impeachment itself, because when we impeach, we are
charging him with the Articles of Impeachment. That is my understanding.[69]
(emphasis and underscoring supplied)

Capping these above-quoted discussions was the explanation of Commissioner

Maambong delivered on at least two occasions:

[I]

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment
on the floor. The procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment is the one approved by the
body.
As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the resolution.
It is not the body which initiates it. It only approves or disapproves the resolution. So,
on that score, probably the Committee on Style could help in rearranging the words
because we have to be very technical about this. I have been bringing with me The
Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with
me. The proceedings on the case of Richard Nixon are with me. I have submitted my
proposal, but the Committee has already decided. Nevertheless, I just want to indicate
this on record.

Thank you, Mr. Presiding Officer.[70] (italics in the original; emphasis and underscoring
supplied)

[II]

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only with
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of its provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of impeachment OF the committee or to
override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned
on line 25 in the case of the direct filing of a verified complaint of one-third of all the
Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of
the House of Representatives of the United States Congress.

Thank you, Madam President.[71] (emphasis and underscoring supplied)

To the next logical question of what ends or completes the initiation, Commissioners
Bernas and Regalado lucidly explained that the filing of the complaint must be
accompanied by the referral to the Committee on Justice, which is the action that sets
the complaint moving. Francisco cannot be any clearer in pointing out the material
dates.

Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken
thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated in the foregoing manner, another may not be filed against
the same official within a one year period following Article XI, Section 3(5) of the
Constitution.

In fine, considering that the first impeachment complaint was filed by former President
Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of
this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5,
2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro,
Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates
the constitutional prohibition against the initiation of impeachment proceedings against
the same impeachable officer within a one-year period.[72] (emphasis, italics and
underscoring supplied)

These clear pronouncements notwithstanding, petitioner posits that the date of referral
was considered irrelevant in Francisco. She submits that referral could not be the
reckoning point of initiation because "something prior to that had already been
done,"[73] apparently citing Bernas' discussion.

The Court cannot countenance any attempt at obscurantism.

What the cited discussion was rejecting was the view that the House's action on the
committee report initiates the impeachment proceedings. It did not state that to
determine the initiating step, absolutely nothing prior to it must be done. Following
petitioner's line of reasoning, the verification of the complaint or the endorsement by a
member of the House - steps done prior to the filing - would already initiate the
impeachment proceedings.

Contrary to petitioner's emphasis on impeachment complaint, what the Constitution

mentions is impeachment "proceedings." Her reliance on the singular tense of the word
"complaint"[74] to denote the limit prescribed by the Constitution goes against the basic
rule of statutory construction that a word covers its enlarged and plural sense.[75]

The Court, of course, does not downplay the importance of an impeachment complaint,
for it is the matchstick that kindles the candle of impeachment proceedings. The filing of
an impeachment complaint is like the lighting of a matchstick. Lighting the matchstick
alone, however, cannot light up the candle, unless the lighted matchstick reaches or
torches the candle wick. Referring the complaint to the proper committee ignites the
impeachment proceeding. With a simultaneous referral of multiple complaints filed,
more than one lighted matchsticks light the candle at the same time. What is important
is that there should only be ONE CANDLE that is kindled in a year, such that once the
candle starts burning, subsequent matchsticks can no longer rekindle the candle.

A restrictive interpretation renders the impeachment mechanism both illusive and

illusory.

For one, it puts premium on senseless haste. Petitioner's stance suggests that whoever
files the first impeachment complaint exclusively gets the attention of Congress which
sets in motion an exceptional once-a-year mechanism wherein government resources are
devoted. A prospective complainant, regardless of ill motives or best intentions, can
wittingly or unwittingly desecrate the entire process by the expediency of submitting a
haphazard complaint out of sheer hope to be the first in line. It also puts to naught the
effort of other prospective complainants who, after diligently gathering evidence first to
buttress the case, would be barred days or even hours later from filing an impeachment
complaint.

Placing an exceedingly narrow gateway to the avenue of impeachment proceedings turns

its laudable purpose into a laughable matter. One needs only to be an early bird even
without seriously intending to catch the worm, when the process is precisely intended to
effectively weed out "worms" in high offices which could otherwise be ably caught by
other prompt birds within the ultra-limited season.

Moreover, the first-to-file scheme places undue strain on the part of the actual
complainants, injured party or principal witnesses who, by mere happenstance of an
almost always unforeseeable filing of a first impeachment complaint, would be brushed
aside and restricted from directly participating in the impeachment process.

Further, prospective complainants, along with their counsel and members of the House
of Representatives who sign, endorse and file subsequent impeachment complaints
against the same impeachable officer run the risk of violating the Constitution since they
would have already initiated a second impeachment proceeding within the same year.
Virtually anybody can initiate a second or third impeachment proceeding by the mere
filing of endorsed impeachment complaints. Without any public notice that could charge
them with knowledge, even members of the House of Representatives could not readily
ascertain whether no other impeachment complaint has been filed at the time of
committing their endorsement.

The question as to who should administer or pronounce that an impeachment proceeding

has been initiated rests also on the body that administers the proceedings prior to the
impeachment trial. As gathered from Commissioner Bernas' disquisition[76] in Francisco,
a proceeding which "takes place not in the Senate but in the House"[77] precedes the
bringing of an impeachment case to the Senate. In fact, petitioner concedes that the
initiation of impeachment proceedings is within the sole and absolute control of the
House of Representatives.[78] Conscious of the legal import of each step, the House, in
taking charge of its own proceedings, must deliberately decide to initiate an
impeachment proceeding, subject to the time frame and other limitations imposed by
the Constitution. This chamber of Congress alone, not its officers or members or any
private individual, should own up to its processes.

The Constitution did not place the power of the "final say" on the lips of the House
Secretary General who would otherwise be calling the shots in forwarding or freezing any
impeachment complaint. Referral of the complaint to the proper committee is not done
by the House Speaker alone either, which explains why there is a need to include it in
the Order of Business of the House. It is the House of Representatives, in public plenary
session, which has the power to set its own chamber into special operation by referring
the complaint or to otherwise guard against the initiation of a second impeachment
proceeding by rejecting a patently unconstitutional complaint.

Under the Rules of the House, a motion to refer is not among those motions that shall be
decided without debate, but any debate thereon is only made subject to the five-minute
rule.[79] Moreover, it is common parliamentary practice that a motion to refer a matter
or question to a committee may be debated upon, not as to the merits thereof, but only
as to the propriety of the referral.[80] With respect to complaints for impeachment, the
House has the discretion not to refer a subsequent impeachment complaint to the
Committee on Justice where official records and further debate show that an
impeachment complaint filed against the same impeachable officer has already been
referred to the said committee and the one year period has not yet expired, lest it
becomes instrumental in perpetrating a constitutionally prohibited second impeachment
proceeding. Far from being mechanical, before the referral stage, a period of
deliberation is afforded the House, as the Constitution, in fact, grants a maximum of
three session days within which to make the proper referral.

As mentioned, one limitation imposed on the House in initiating an impeachment

proceeding deals with deadlines. The Constitution states that "[a] verified complaint for
impeachment may be filed by any Member of the House of Representatives or by any
citizen upon a resolution or endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter."

In the present case, petitioner failed to establish grave abuse of discretion on the
allegedly "belated" referral of the first impeachment complaint filed by the Baraquel
group. For while the said complaint was filed on July 22, 2010, there was yet then no
session in Congress. It was only four days later or on July 26, 2010 that the 15th
Congress opened from which date the 10-day session period started to run. When, by
Memorandum of August 2, 2010, Speaker Belmonte directed the Committee on Rules to
include the complaint in its Order of Business, it was well within the said 10-day session
period.[81]

There is no evident point in rushing at closing the door the moment an impeachment
complaint is filed. Depriving the people (recall that impeachment is primarily for the
protection of the people as a body politic) of reasonable access to the limited political
vent simply prolongs the agony and frustrates the collective rage of an entire citizenry
whose trust has been betrayed by an impeachable officer. It shortchanges the promise
of reasonable opportunity to remove an impeachable officer through the mechanism
enshrined in the Constitution.

But neither does the Court find merit in respondents' alternative contention that the
initiation of the impeachment proceedings, which sets into motion the one-year bar,
should include or await, at the earliest, the Committee on Justice report. To public
respondent, the reckoning point of initiation should refer to the disposition of the
complaint by the vote of at least one-third (1/3) of all the members of the House.[82] To
the Reyes group, initiation means the act of transmitting the Articles of Impeachment to
the Senate.[83] To respondent-intervenor, it should last until the Committee on Justice's
recommendation to the House plenary.[84]

The Court, in Francisco, rejected a parallel thesis in which a related proposition was
inputed in the therein assailed provisions of the Impeachment Rules of the 12th
Congress. The present case involving an impeachment proceeding against the
Ombudsman offers no cogent reason for the Court to deviate from what was settled in
Francisco that dealt with the impeachment proceeding against the then Chief Justice. To
change the reckoning point of initiation on no other basis but to accommodate the socio-
political considerations of respondents does not sit well in a court of law.

x x x We ought to be guided by the doctrine of stare decisis et non quieta movere. This
doctrine, which is really "adherence to precedents," mandates that once a case has been
decided one way, then another case involving exactly the same point at issue should be
decided in the same manner. This doctrine is one of policy grounded on the necessity for
securing certainty and stability of judicial decisions. As the renowned jurist Benjamin
Cardozo stated in his treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and the
opposite way between another. "If a group of cases involves the same point, the parties
expect the same decision. It would be a gross injustice to decide alternate cases on
opposite principles. If a case was decided against me yesterday when I was a defendant,
I shall look for the same judgment today if I am plaintiff. To decide differently would
raise a feeling of resentment and wrong in my breast; it would be an infringement,
material and moral, of my rights." Adherence to precedent must then be the rule rather
than the exception if litigants are to have faith in the even-handed administration of
justice in the courts.[85]

As pointed out in Francisco, the impeachment proceeding is not initiated "when the
House deliberates on the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the House is already a
further step in the proceeding, not its initiation or beginning. Rather, the proceeding is
initiated or begins, when a verified complaint is filed and referred to the Committee on
Justice for action. This is the initiating step which triggers the series of steps that
follow."[86]

Allowing an expansive construction of the term "initiate" beyond the act of referral allows
the unmitigated influx of successive complaints, each having their own respective 60-
session-day period of disposition from referral. Worse, the Committee shall conduct
overlapping hearings until and unless the disposition of one of the complaints ends with
the affirmance of a resolution for impeachment or the overriding[87] of a contrary
resolution (as espoused by public respondent), or the House transmits the Articles of
Impeachment (as advocated by the Reyes group),[88] or the Committee on Justice
concludes its first report to the House plenary regardless of the recommendation (as
posited by respondent-intervenor). Each of these scenarios runs roughshod the very
purpose behind the constitutionally imposed one-year bar. Opening the floodgates too
loosely would disrupt the series of steps operating in unison under one proceeding.
The Court does not lose sight of the salutary reason of confining only one impeachment
proceeding in a year. Petitioner concededly cites Justice Adolfo Azcuna's separate opinion
that concurred with the Francisco ruling.[89] Justice Azcuna stated that the purpose of
the one-year bar is two-fold: "to prevent undue or too frequent harassment; and 2) to
allow the legislature to do its principal task [of] legislation," with main reference to the
records of the Constitutional Commission, that reads:

MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public
officials who, in this case, are of the highest category from harassment but also to allow
the legislative body to do its work which is lawmaking. Impeachment proceedings take a
lot of time. And if we allow multiple impeachment charges on the same individual to
take place, the legislature will do nothing else but that.[90] (underscoring supplied)

It becomes clear that the consideration behind the intended limitation refers to the
element of time, and not the number of complaints. The impeachable officer should
defend himself in only one impeachment proceeding, so that he will not be precluded
from performing his official functions and duties. Similarly, Congress should run only one
impeachment proceeding so as not to leave it with little time to attend to its main work
of law-making. The doctrine laid down in Francisco that initiation means filing and
referral remains congruent to the rationale of the constitutional provision.

Petitioner complains that an impeachable officer may be subjected to harassment by the

filing of multiple impeachment complaints during the intervening period of a maximum
of 13 session days between the date of the filing of the first impeachment complaint to
the date of referral.

As pointed out during the oral arguments[91] by the counsel for respondent-intervenor,
the framework of privilege and layers of protection for an impeachable officer abound.
The requirements or restrictions of a one-year bar, a single proceeding, verification of
complaint, endorsement by a House member, and a finding of sufficiency of form and
substance - all these must be met before bothering a respondent to answer - already
weigh heavily in favor of an impeachable officer.

Aside from the probability of an early referral and the improbability of inclusion in the
agenda of a complaint filed on the 11th hour (owing to pre-agenda standard operating
procedure), the number of complaints may still be filtered or reduced to nil after the
Committee decides once and for all on the sufficiency of form and substance. Besides, if
only to douse petitioner's fear, a complaint will not last the primary stage if it does not
have the stated preliminary requisites.

To petitioner, disturbance of her performance of official duties and the deleterious effects
of bad publicity are enough oppression.

Petitioner's claim is based on the premise that the exertion of time, energy and other
resources runs directly proportional to the number of complaints filed. This is non
sequitur. What the Constitution assures an impeachable officer is not freedom from
arduous effort to defend oneself, which depends on the qualitative assessment of the
charges and evidence and not on the quantitative aspect of complaints or offenses. In
considering the side of the impeachable officers, the Constitution does not promise an
absolutely smooth ride for them, especially if the charges entail genuine and grave
issues. The framers of the Constitution did not concern themselves with the media
tolerance level or internal disposition of an impeachable officer when they deliberated on
the impairment of performance of official functions. The measure of protection afforded
by the Constitution is that if the impeachable officer is made to undergo such ride, he or
she should be made to traverse it just once. Similarly, if Congress is called upon to
operate itself as a vehicle, it should do so just once. There is no repeat ride for one full
year. This is the whole import of the constitutional safeguard of one-year bar rule.

Applicability of the Rules

on Criminal Procedure

On another plane, petitioner posits that public respondent gravely abused its discretion
when it disregarded its own Impeachment Rules, the same rules she earlier chastised.

In the exercise of the power to promulgate rules "to effectively carry out" the provisions
of Section 3, Article XI of the Constitution, the House promulgated the Impeachment
Rules, Section 16 of which provides that "the Rules of Criminal Procedure under the Rules
of Court shall, as far as practicable, apply to impeachment proceedings before the
House."

Finding that the Constitution, by express grant, permits the application of additional
adjective rules that Congress may consider in effectively carrying out its mandate,
petitioner either asserts or rejects two procedural devices.

First is on the "one offense, one complaint" rule. By way of reference to Section 16 of
the Impeachment Rules, petitioner invokes the application of Section 13, Rule 110 of the
Rules on Criminal Procedure which states that "[a] complaint or information must charge
only one offense, except when the law prescribes a single punishment for various
offenses." To petitioner, the two impeachment complaints are insufficient in form and
substance since each charges her with both culpable violation of the Constitution and
betrayal of public trust. She concludes that public respondent gravely abused its
discretion when it disregarded its own rules.

Petitioner adds that heaping two or more charges in one complaint will confuse her in
preparing her defense; expose her to the grave dangers of the highly political nature of
the impeachment process; constitute a whimsical disregard of certain rules; impair her
performance of official functions as well as that of the House; and prevent public
respondent from completing its report within the deadline.

Public respondent counters that there is no requirement in the Constitution that an

impeachment complaint must charge only one offense, and the nature of impeachable
offenses precludes the application of the above-said Rule on Criminal Procedure since the
broad terms cannot be defined with the same precision required in defining crimes. It
adds that the determination of the grounds for impeachment is an exercise of political
judgment, which issue respondent-intervenor also considers as non-justiciable, and to
which the Baraquel group adds that impeachment is a political process and not a
criminal prosecution, during which criminal prosecution stage the complaint or
information referred thereto and cited by petitioner, unlike an impeachment complaint,
must already be in the name of the People of the Philippines.

The Baraquel group deems that there are provisions[92] outside the Rules on Criminal
Procedure that are more relevant to the issue. Both the Baraquel and Reyes groups point
out that even if Sec. 13 of Rule 110 is made to apply, petitioner's case falls under the
exception since impeachment prescribes a single punishment - removal from office and
disqualification to hold any public office - even for various offenses. Both groups also
observe that petitioner concededly and admittedly was not keen on pursuing this issue
during the oral arguments.

Petitioner's claim deserves scant consideration.

Without going into the effectiveness of the suppletory application of the Rules on
Criminal Procedure in carrying out the relevant constitutional provisions, which
prerogative the Constitution vests on Congress, and without delving into the
practicability of the application of the one offense per complaint rule, the initial
determination of which must be made by the House[93] which has yet to pass upon the
question, the Court finds that petitioner's invocation of that particular rule of Criminal
Procedure does not lie. Suffice it to state that the Constitution allows the indictment for
multiple impeachment offenses, with each charge representing an article of
impeachment, assembled in one set known as the "Articles of Impeachment."[94] It,
therefore, follows that an impeachment complaint need not allege only one impeachable
offense.

The second procedural matter deals with the rule on consolidation. In rejecting a
consolidation, petitioner maintains that the Constitution allows only one impeachment
complaint against her within one year.

Records show that public respondent disavowed any immediate need to consolidate. Its
chairperson Rep. Tupas stated that "[c]onsolidation depends on the Committee whether
to consolidate[; c]onsolidation may come today or may come later on after
determination of the sufficiency in form and substance," and that "for purposes of
consolidation, the Committee will decide when is the time to consolidate[, a]nd if,
indeed, we need to consolidate."[95] Petitioner's petition, in fact, initially describes the
consolidation as merely "contemplated."[96]

Since public respondent, whether motu proprio or upon motion, did not yet order a
consolidation, the Court will not venture to make a determination on this matter, as it
would be premature, conjectural or anticipatory.[97]

Even if the Court assumes petitioner's change of stance that the two impeachment
complaints were deemed consolidated,[98] her claim that consolidation is a legal
anomaly fails. Petitioner's theory obviously springs from her "proceeding = complaint"
equation which the Court already brushed aside.

WHEREFORE, the petition is DISMISSED. The assailed Resolutions of September 1, 2010

and September 7, 2010 of public respondent, the House of Representatives Committee
on Justice, are NOT UNCONSTITUTIONAL. The Status Quo Ante Order issued by the Court
on September 14, 2010 is LIFTED.

SO ORDERED.

Corona, C.J., I join the dissent of J. Brion.

Carpio, J., see concurring opinion.
Velasco, Jr., J., no part.
Nachura, J., see separate opinion.
Leonardo-De Castro, J., I join the dissent of J. Brion.
Brion, J., see: dissent.
Peralta, J., I join the dissent of J. Brion.
Bersamin, J., I certify that Mr. J. Bersamin sent in his vote joining the dissenting opinion of
Mr. J. Brion.
Del Castillo, J., see separate concurring and dissenting opinion.
Abad, J., see concurring opinion.
Villarama, Jr., and Mendoza, JJ., concur.
Perez, J., see separate concurring and dissenting opinion.
Sereno, J. see concurring opinion.

--------------------------------------------------------------------------------
[1] Rollo, pp. 93-111.

[2] Id. at 91-92.

[3] Id. at 561.

[4] Id. at 562.

[5] Id. at 136-169.

[6] Id. at 133-135.

[7] Id. at 563.

[8] Id. at 564.

[9] Rules of the House of Representatives, Rule IX, Sec. 27, par. (ss).

[10] Rollo, p. 565.

[11] Journal of the House of Representatives (15th Congress), Journal No. 9, August 11,
2010 (rollo, p. 576).

[12] As gathered from the pleadings, the two impeachment complaints are summarized
as follows:

First Complaint Second Complaint

A. Betrayal of Public Trust:

1. The dismal and unconscionable low conviction rate of the Ombudsman from 2008
onwards 1. gross inexcusable delay in investigating and failure in prosecuting those
involved in the anomalous Fertilizer Fund Scam despite the COA & Senate findings and
the complaints filed against them.
2. The failure to take prompt and immediate action against PGMA and FG with regard to
the NBN-ZTE Broadband project 2. she did not prosecute Gen. Eliseo de la Paz for
violating BSP rules[12] that prohibit the taking out of the country of currency in excess of
US$10,000 without declaring the same to the Phil. Customs, despite his admission under
oath before the Senate Blue Ribbon Committee
3. The delay in conducting and concluding an investigation on the death of Ensign
Andrew Pestao aboard a Philippine Navy vessel 3. gross inexcusable delay or inaction
by acting in deliberate disregard of the Court's findings and directive in Information
Technology Foundation of the Philippines v. Comelec
4. The decision upholding the legality of the arrest and detention of Rep. Hontiveros
-Baraquel by the PNP in March 2006.

5. The failure to conduct an investigation regarding the P1M dinner at Le Cirque

Restaurant in New York.

B. Culpable Violation of the Constitution:

6. The repeated delays and failure to take action on cases impressed with public interest
4. through her repeated failure and inexcusable delay in acting upon matters, she
violated Sec. 12 and Sec. 13, pars. 1-3 of Art. XI and Sec. 16 of Art. III of the Constitution
which mandates prompt action and speedy disposition of cases
7. The refusal to grant ready access to public records like SALNW

[13] Rollo, p. 261.

[14] Id. at 262-263. Justices Carpio, Carpio Morales, and Sereno dissented; Justices
Nachura, Leonardo-De Castro, Brion, and Mendoza were on official business.

[15]Id. at 623-625.

[16] Reyes Group's Memorandum, pp. 5-8 (rollo, pp. 1064-1067).

[17] The Committee's Memorandum, pp. 22-25 (id. at 915-918).

[18] 460 Phil. 830 (2003).

[19] Id. at 889-892.

[20] Id. at 883, which reads: "To ensure the potency of the power of judicial review to
curb grave abuse of discretion by `any branch or instrumentalities of government,' the
afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its
history, into block letter law the so-called `expanded certiorari jurisdiction' of this
Court[.]"

[21] Constitution, Art. VIII, Sec. 1.

[22] Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

[23] The Committee's Memorandum, p. 28 (rollo, p. 921).

[24] Lozano v. Nograles, G.R. No. 187883, June 16, 2009, 589 SCRA 356, 358.

[25] Guingona Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).

[26] Casimiro v. Tandog, 498 Phil. 660, 667 (2005).

[27] G.R. No. 126496, April 30, 1997, 271 SCRA 790.

[28] Id. at 804.

[29] The Committee's Memorandum, p. 36 (rollo, p. 929).

[30] Transcript of Stenographic Notes (TSN), Oral Arguments, October 5, 2010, pp. 47-50.

[31] G. R. No. 175057, January 29, 2008, 543 SCRA 70.

[32] Id. at 89-90.

[33] TSN, Oral Arguments, October 5, 2010, pp. 54-55.

[34] Section 5. Notice to Respondents and Time to Plead.- If the committee finds the
complaint sufficient in form and substance, it shall immediately furnish the respondent(s)
with a copy of the resolution and/or verified complaint, as the case may be, with written
notice that he/she shall answer the complaint within ten (10) days from receipt of notice
thereof and serve a copy of the answer to the complainant(s). No motion to dismiss shall
be allowed within the period to answer the complaint.

The answer, which shall be under oath, may include affirmative defenses. If the
respondent fails or refuses to file an answer within the reglementary period, he/she is
deemed to have interposed a general denial to the complaint. Within three (3) days from
receipt of the answer, the complainant may file a reply, serving a copy thereof to the
respondent who may file a rejoinder within three (3) days from receipt of the reply,
serving a copy thereof to the complainant. If the complainant fails to file a reply, all the
material allegations in the answer are deemed controverted. Together with their
pleadings, the parties shall file their affidavits or counter-affidavits, as the case may be,
with their documentary evidence. Such affidavits or counter-affidavits shall be subscribed
before the Chairperson of the Committee on Justice or the Secretary General.
Notwithstanding all the foregoing, failure presenting evidence in support of his/her
defenses.

When there are more than one respondent, each shall be furnished with copy of the
verified complaint from a Member of the House or a copy of the verified complaint from a
private citizen together with the resolution of endorsement by a Member of the House of
Representatives and a written notice to answer and in that case, reference to respondent
in these Rules shall be understood as respondents. (underscoring supplied)
[35] Petitioner's Memorandum, pp. 66-73 (rollo, pp. 829-836).

[36] Vide Constitution, Art. XI, Sec. 3 (2).

[37] Vide Rules of Procedure in Impeachment Proceedings, Rule III, Sec. 4.

[38] A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof. (emphasis and underscoring supplied)

[39] Francisco, Jr. v. House of Representatives, supra at 913.

[40] Philippine Daily Inquirer and Philippine Star.

[41] 230 Phil. 528 (1986).

[42] The Committee's Memorandum, p. 58 (rollo, p. 951).

[43] G.R. No. 180643, March 25, 2008, 549 SCRA 77; and September 4, 2008, 564 SCRA
152, 230, where the Court resolved: "The language of Section 21, Article VI of the
Constitution requiring that the inquiry be conducted in accordance with the duly
published rules of procedure is categorical. (emphasis in the original; underscoring
supplied).

[44] Black's Law Dictionary (6th ed.), p. 1214.

[45] The words "promulgate" and "promulgated" appear in the following sections: a)
Preamble; b) Section 2 of Article V; c) Section 4 of Article VII (twice); d) Section 18 of
Article VII; e) Section 5 of Article VIII; f) Section 6 of Article IX-A; g) Section 3 of Article IX-
C; h) Section 2 of Article IX-D; i) Section 3 (8) of Article XI; j) Section 13 (8) of Article XI;
and k) Section 8 of Article XIV.

[46] Heritage Park Management Corp. v. CIAC, G.R. No. 148133, October 8, 2008, 568
SCRA 108, 120, citing Neria v. Commissioner on Immigration, 23 SCRA 806, 812.

[47] [Last visited November 22, 2010].

[48] National Association of Electricity Consumers for Reform v. Energy Regulatory

Commission, G.R. No. 163935, February 2, 2006, 481 SCRA 480, 522.

[49] Marcos v. Chief of Staff, AFP, 89 Phil. 239 (1951).

[50] Sen. Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 300 (1998).

[51] Supra note 41.

[52] II Record of the Constitutional Commission, p. 372 (July 28, 1986).

[53] Manila Prince Hotel v. GSIS, 335 Phil. 82, 102 (1997).

[54] Cheng v. Sy, G.R. No. 174238, July 7, 2009, 592 SCRA 155, 164-165.

[55] De Leon And De Leon, Jr., The Law On Public Officers And Election Law (2003 ed.), p.
467, citing SINCO, Philippine Political Law, 11th ed. (1962), p. 374.
[56] Neri v. Senate Committee on Accountability of Public Officers and Investigations,
supra at 231.

[57] 1) Rule III, Section 4 thereof, on the finding of insufficiency in form, where petitioner
prayed that the complaint be returned to the Secretary General within three session days
with a written explanation of the insufficiency, who shall, in turn, return the same to the
complainants together with the written explanation within three session days from
receipt of the committee resolution.

2) Rule VII, Sec. 16 thereof, on the applicability of the rules of criminal procedure, where
petitioner invokes the rule against duplicity of offense under Section 13, Rule 110 of the
Rules of Court.

[58] 460 Phil. 830 (2003).

[59] Id. at 927.

[60] Francisco, supra at 932.

[61] In case of a direct filing by at least one-third (1/3) of all the members of the House
of Representatives under paragraph (4), Section 3, Article XI of the Constitution, there
occurs an abbreviated mode of initiation wherein the filing of the complaint and the
taking of initial action are merged into a single act.

[62] Francisco, supra at 932-933.

[63] Section 16. Impeachment Proceedings Deemed Initiated. In cases where a

Member of the House files a verified complaint of impeachment or a citizen files a
verified complaint that is endorsed by a Member of the House through a resolution of
endorsement against an impeachable officer, impeachment proceedings against such
official are deemed initiated on the day the Committee on Justice finds that the verified
complaint and or resolution against such official, as the case may be, is sufficient in
substance, or on the date the House votes to overturn or affirm the finding of the said
Committee that the verified complaint and or resolution, as the case may be, is not
sufficient in substance.

In cases where a verified complaint or a resolution of impeachment is filed or endorsed,

as the case may be, by at least one-third (1/3) of the Members of the House,
impeachment proceedings are deemed initiated at the time of the filing of such verified
complaint or resolution of impeachment with the Secretary General. (emphasis,
underscoring and italics supplied)

[64] Section 17. Bar Against Initiation of Impeachment Proceedings. Within a period of
one (1) year from the date impeachment proceedings are deemed initiated as provided
in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the
same official. (emphasis, underscoring and italics supplied)

[65] Francisco, supra at 933.

[66] Petitioner's Memorandum, pp. 30-36 (rollo, pp. 793-799).

[67] II Record of the Constitutional Commission, p. 376 (July 28, 1986).

[68] Id. at 279-280.

[69] Id. at 374-375.

[70] Id. at 375-376.

[71] Id. at 416.

[72] Francisco, supra at 940.

[73] Francisco, supra at 931.

[74] Section 3. x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

xxxx

[75] Vide Gatchalian, etc. v. COMELEC, 146 Phil. 435, 442-443 (1970).

[76] x x x An impeachment case is the legal controversy that must be decided by the
Senate. Above-quoted first provision provides that the House, by a vote of one-third of
all its members, can bring a case to the Senate. It is in that sense that the House has
"exclusive power" to initiate all cases of impeachment. No other body can do it.
However, before a decision is made to initiate a case in the Senate, a "proceeding" must
be followed to arrive at a conclusion. x x x (Francisco, supra at 930-931).

[77] Francisco, supra at 931.

[78] Petitioner's Memorandum, p. 55 (rollo, p. 818).

[79] Rules of the House of Representatives, Rule XIII, Sec. 96.

[80] (visited: November 12, 2010), which further explains:

"The Object of the motion to refer to a standing or special committee is usually to enable
a question to be more carefully investigated and put into better shape for the assembly
to consider, than can be done in the assembly itself. Where an assembly is large and has
a very large amount of business it is safer to have every main question go to a
committee before final action on it is taken." (underscoring supplied).

[81] Vide Rules of Procedure in Impeachment Proceedings, Rule II, Sec. 2. Note also that
Section 3 (2), Article XI of the Constitution did not use the terms "calendar days" or
"working days."

[82] Respondent Committee's Memorandum, p. 78 (rollo, p. 971).

[83] Respondent Reyes group's Memorandum, p. 26 (id. at 1085).

[84] Respondent-Intervenor's Memorandum, p. 22 (id. at 1131).

[85] Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010.

[86] Francisco, supra at 931.

[87] It was made of record that "whenever the body will override the resolution of
impeachment of the Committee, it is understood that the body itself will prepare the
Articles of Impeachment." [II Record of the Constitutional Commission, p. 416 (July 29,
1986)].

[88] To respondents Committee and Reyes Group, any House action of dismissal of the
complaint would not set in the one-year bar rule.
[89] Petitioner's Memorandum, p. 38 (rollo, p. 801), citing the Separate Opinion of Justice
Adolf Azcuna in Francisco.

[90] II Record of the Constitutional Commission, p. 282 (July 26, 1986).

[91] TSN, October 12, 2010, p. 212.

[92] Citing Rules of Court, Rule 2, Sec. 5 & Rule 140, Sec. 1.

[93] Or by the Committee if the question is first raised therein.

[94] This is not to say, however, that it must always contain two or more charges. In
Santillon v. Miranda, et al, [121 Phil. 1351, 1355 (1965)], it was held that the plural can
be understood to include the singular.

[95] Petitioner cites that the Committee stated that "although two complaints were filed
against petitioner, the two were in effect merged in one proceeding by their referral on
the same day to the Committee." (TSN, Committee Hearing, September 1, 2010; rollo, p.
528-529).

[96] Id. at 48.

[97] Vide San Luis v. Rojas, G.R. No. 159127, March 3, 2008, 547 SCRA 345, 367.

[98] The Committee's Comment, p. 29 (rollo, p. 430).

--------------------------------------------------------------------------------

CONCURRING OPINION

CARPIO, J.

On 22 July 2010, Risa Hontiveros-Baraquel, Danilo D. Lim, Felipe Pestao and Evelyn
Pestao (Baraquel, et al.) filed an impeachment complaint (First Complaint) against
Ombudsman Ma. Merceditas N. Gutierrez (petitioner) based on the following grounds:

I. Ombudsman Ma. Merceditas Navarro-Gutierrez betrayed the public trust.

The dismal and unconscionably low conviction rates achieved by the Office of the
Ombudsman from 2008 onward indicate a criminal level of incompetence amounting to
grave dereliction of duty which constitutes a clear betrayal of public trust.

The unreasonable failure of the Ombudsman to take prompt and immediate action, in
violation of its own rules of procedure, on the complaints filed against various public
officials including former President Gloria Macapagal-Arroyo, and her husband Jose
Miguel T. Arroyo with regard to the NBN-ZTE Broadband Project constitutes betrayal of
public trust.

The inexcusable delay of the Ombudsman in conducting and concluding its investigation
into the wrongful death of Ensign Philip Andrew Pestao aboard a Philippine Navy vessel
constitutes a betrayal of public trust.
The decision of the Ombudsman upholding the "legality" of the arrest and involuntary
detention of then Representative Risa Hontiveros-Baraquel by the Philippine National
Police in March 2006 in violation of the explicit rules provided in the Revised Penal Code
and as established by jurisprudence constitutes a betrayal of public trust.

The failure of the Ombudsman to conduct an investigation into the possible wrongdoing
or impropriety with regard to the P1,000,000.00 dinner for the Presidential Party at Le
Cirque Restaurant in New York in August 2009 despite widespread media coverage and
media clamor, and a formal letter from Representative Walden F. Bello calling for an
inquiry constitutes betrayal of public trust.

II. Ombudsman Ma. Merceditas Navarro-Gutierrez performed acts amounting to culpable

violation of the Constitution.

The repeated failure of the Ombudsman to take prompt action on a wide variety of cases
involving official abuse and corruption violates Article XI, Section 12 and Article III,
Section 16 of the Constitution, which mandate prompt action and speedy disposition of
cases.

The refusal of the Ombudsman to grant ready access to public records such as the
Statement of Assets and Liabilities and Net Worth (SALN) required of all public officers
under Republic Act No. 6713 constitutes a culpable violation of Article XI, Section 13(6)
and Article III, Section 7 of the Constitution.

The First Complaint was endorsed by AKBAYAN Party-list Representatives Kaka Bag-ao
and Walden Bello.

On 3 August 2010, Renato Reyes, Secretary General of BAYAN, Mo. Mary John Mananzan
of PAGBABAGO, Danilo Ramos, Secretary General of Kilusang Magbubukid ng Pilipinas,
Atty. Edre Olalia, Acting Secretary General of National Union of People's Lawyers,
Ferdinand Gaite, Chairperson of COURAGE, and James Terry Ridon, Chairperson of League
of Filipino Students (Reyes, et al.) filed a Verified Impeachment Complaint (Second
Complaint) against petitioner on the following grounds:

I. Betrayal of Public Trust

Ombudsman Gutierrez committed betrayal of public trust through her gross inexcusable
delay in investigating and failure in prosecuting any one of [those] involved on the
anomalous transactions arising from the Fertilizer Fund Scam despite the blatant
anomalous transactions revealed in the COA findings, Senate Committee Report 54 and
the complaints filed with respondent on the "Fertilizer Scam."

(2) Ombudsman Gutierrez committed betrayal of public trust when she did not prosecute
Gen. Eliseo De la Paz for violating BSP Circular 98 (1995), as amended by BSP Circular
507 (2006), in relation to Republic Act 6713, which prohibits the taking out of the country
of currency in excess of US $10,000.00 without declaring the same to the Philippine
customs, despite the fact that Gen. Eliseo De la Paz publicly admitted under oath before
the Senate Blue Ribbon Committee that he took out of the country currency in excess of
US $ 10,000.00 without declaring the same with the Philippine Customs.

(3) Ombudsman Gutierrez betrayed the public trust through her gross inexcusable delay
or inaction by acting in deliberate disregard of the Supreme Court's findings and
directive in its decision and resolution in Information Technology Foundation of the
Philippines, et al. v. Commission on Elections, et al.

II. Culpable violation of the Constitution

The Second Complaint was endorsed by Representatives Neri Javier Colmenares, Teodoro
A. Casio, Rafael V. Mariano, Luzviminda C. Ilagan, Raymond V. Palatino, Antonio L. Tinio,
and Emerenciana A. De Jesus.

On 3 August 2010, the House of Representatives Committee on Justice (Committee on

Justice) provisionally adopted the Rules of Procedure in Impeachment Proceedings of the
Fourteenth Congress (Rules of Procedure).

On 11 August 2010, the First and Second Complaints were referred by the Plenary to the
Committee on Justice.

On 1 September 2010, the Committee on Justice found the First and Second Complaints
sufficient in form by a vote of 39 in favor and 1 against, and 31 in favor and 9 against,
respectively.

On 2 September 2010, the Rules of Procedure was published.

On 7 September 2010, the Committee on Justice, voting 40 in favor and 10 against,

affirmed that the First and Second Complaints were sufficient in form. Thereafter, the
Committee on Justice found the First and Second Complaints sufficient in substance, by a
vote of 41 in favor and 14 against and 41 in favor and 16 against, respectively. Petitioner
was directed to file an answer to the complaints within 10 days from receipt of notice.

On 13 September 2010, petitioner filed a petition for certiorari and prohibition[1] before
this Court seeking to enjoin the Committee on Justice from proceeding with the
impeachment proceedings. The petition prayed for a temporary restraining order. The
petition is based on the following grounds:

I. In gross and wanton disregard of the rudimentary requirements of due process of law,
the Committee acted with indecent and precipitate haste in issuing its assailed
Resolutions, dated 1 September 2010 and 7 September 2010 which found the two (2)
impeachment complaints filed against petitioner Ombudsman sufficient in form and
substance.

II. The Rules of Procedure in impeachment proceedings lack comprehensive standards in

determining as to what amounts to sufficiency in form of an impeachment complaint and
gives the members of the Committee unfettered discretion in carrying out its provisions.
Thus, it contravenes the Constitution and violates petitioner Ombudsman's cardinal and
primary right to due process, thereby tainting the hearing conducted before the
Committee on 1 September 2010 in relation to the sufficiency in form of the two (2)
impeachment complaints with illegality and nullity.

III. The Committee's finding that the two (2) impeachment complaints filed against
petitioner Ombudsman are sufficient in form violate Section 3(5), Article XI of the 1987
Constitution which provides that no impeachment proceedings shall be initiated against
the same official more than once within a period of one (1) year. In the Francisco case,
the Honorable Court reckoned the start of the one (1) year bar on the impeachment of an
impeachable officer from the date of the filing of the complaint. In the instant case, the
first complaint was filed on 22 July 2010. Thus, the filing of the second complaint on 3
August 2010, a mere twelve (12) days after the filing of the first complaint, violates the
one (1) year bar under the 1987 Constitution. The second complaint should, therefore,
not have been accepted and referred to the Committee for action.

IV. The contemplated consolidation of the two (2) impeachment complaints constitutes a
contravention of the one (1) year bar. If the Committee would follow through on such
course of action, it would be arrogating unto itself the power to alter or amend the
meaning of the Constitution without need of referendum, a power denied to it by the
1987 Constitution and its very own rules. The Committee would also be allowed to to
wantonly exercise unbridled discretion in carrying out the letter and spirit of the
Constitution and to arbitrarily wield the two (2) impeachment complaints as instruments
of harassment and oppression against petitioner Ombudsman..

V. The Rules of Procedure in impeachable proceedings do not prescribe the form or

standards in order for an impeachment complaint to be deemed sufficient in form.
However, Section 16, Rule VII of the same rules provides that the Rules of Criminal
Procedure under the Rules of Court shall, as far as practicable, apply to the impeachment
proceedings before the House. In this regard, Section 13, Rule 110 of the 2000 Rules of
Criminal Procedure mandates that a complaint must charge only one (1) offense. The
Committee, in finding that the two (2) impeachable complaints charging petitioner
Ombudsman with the offenses of culpable violation of the Constitution and betrayal of
public trust sufficient in form, violated the cardinal rule that a complaint must charge
only one (1) offense. Thus, the two (2) impeachment complaints cannot be sufficient in
form.

VI. The two (2) impeachment complaints filed against petitioner Ombudsman do not
meet the standards laid down by the Committee itself for the determination of
"sufficiency of substance."

A. Assuming as true the allegations of the two (2) impeachment complaints, none of
them can be deemed of the same nature as the other grounds for impeachment under
the Constitution.

B. There is no legal right on the part of the complainants to compel petitioner

Ombudsman to file and prosecute offenses committed by public officials and employees.
On the other hand, there is no legal duty on the part of petitioner Ombudsman to file an
Information when she believes that there is no prima facie evidence to do so. Thus, there
can be no "violation of any legal right of the complainants" to speak of that can be the
basis of a finding of "sufficiency in substance" of the two (2) impeachment complaints.

The following day, during the en banc morning session of 14 September 2010, over the
objections of Justices Carpio, Carpio Morales and Sereno who asked for time to read the
petition, the majority of this Court voted to issue a status quo ante order suspending the
impeachment proceedings against petitioner. The petition, with Urgent Motion for
Immediate Raffle, was filed at 9:01 a.m. of 13 September 2010. I received a copy of the
petition only in the afternoon of 14 September 2010, after the en banc morning session
of that day. The petition consists of 60 pages, excluding the annexes. All the Justices
should have been given time, at least an hour or two as is the practice in such urgent
cases, to read the petition before voting on the issuance of the status quo ante order.
Unfortunately, this was not done.

Section 3(5), Article XI of the 1987 Constitution provides that "(n)o impeachment
proceedings shall be initiated against the same official more than once within a period of
one year." There are two impeachment complaints filed against petitioner, filed within
days from each other. The First Complaint was filed on 22 July 2010 while the Second
Complaint was filed on 3 August 2010.

In Francisco, Jr. v. House of Representatives,[2] the Court had the occasion to discuss the
meaning of the term "to initiate" as applied to impeachment proceedings. The Court
ruled:

From the records of the Constitutional Commission, to the amicus curiae briefs of two
former Constitutional Commissioners, it is without doubt that the term "to initiate" refers
to the filing of the impeachment complaint coupled with Congress' taking initial action of
said complaint.

x x x the initiation takes place by the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or, by the filing by at least
one-third of the members of the House of Representatives with the Secretary General of
the House x x x.[3] (Emphasis supplied)
Thus, there are two components of the act of initiating the complaint: the filing of the
impeachment complaint and the referral by the House Plenary to the Committee on
Justice. The Court ruled that once an impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same official within a one year
period.[4]

On 11 August 2010, the two complaints were referred by the House Plenary to the
Committee on Justice at the same time. The Committee on Justice acted on the two
complaints, ruling on the sufficiency of form, and later of substance, at the same time.
The prohibition against filing of another impeachment complaint within a one year period
would apply if the First Complaint was referred by the House Plenary to the Committee
on Justice ahead of the Second Complaint. There is nothing in the Constitution that
prohibits the consolidation of the First and Second Complaints since they were referred
by the House Plenary to the Committee on Justice at the same time. Neither the First nor
the Second Complaint is prior to the other in terms of action of the House Plenary in
referring the two complaints to the Committee on Justice. The Constitutional bar,
therefore, will not apply in this case.

Petitioner alleges that the Rules of Procedure lack comprehensible standards as to what
amounts to sufficiency in form. Petitioner asserts that the determination of the
sufficiency in form must rest on something more substantial than a mere ascertainment
of whether the complaint was verified by the complainants and whether it was properly
referred to the Committee for action.

Section 4, Rule III of the Rules of Procedure provides:

Section 4. Determination of Sufficiency in Form and Substance. - Upon due referral, the
Committee on Justice shall determine whether the complaint is sufficient in form and
substance. If the committee finds that the complaint is insufficient in form, it shall return
the same to the Secretary General within three (3) session days with a written
explanation of the insufficiency. The Secretary General shall return the same to the
complainant(s) together with the committee's written explanation within three (3)
session days from receipt of the committee resolution finding the complaint insufficient
in form.

Should the committee find the complaint sufficient in form, it shall then determine if the
complaint is sufficient in substance. The requirement of substance is met if there is a
recital of facts constituting the offense charged and determinative of the jurisdiction of
the committee. If the committee finds that the complaint is not sufficient in substance, it
shall dismiss the complaint and shall submit its report as provided hereunder.

Section 4 is not vague as petitioner asserts. The Rules of Procedure provides that "[t]he
Rules of Criminal Procedure under the Rules of Court shall, as far as practicable, apply to
impeachment proceedings before the House."[5] Section 7, Rule 117 of the Revised
Rules of Criminal Procedure provides that a complaint or information is sufficient if it
states, among other things, the name of the accused and the acts or omissions
complained of as constituting the offense. Following Section 16 of the Rules of Procedure,
Section 7, Rule 117 of the Revised Rules of Criminal Procedure suppletorily applies to the
Rules of Procedure to determine whether the impeachment complaints are sufficient in
form. The fact that the acts complained of are enumerated in the impeachment
complaints, coupled with the fact that they were verified and endorsed, is enough to
determine whether the complaints were sufficient in form.

Petitioner also asserts that the complaints violate Section 13, Rule 110 of the Revised
Rules of Criminal Procedure[6] which provides that a complaint or information must
charge only one offense. Petitioner alleges that the Committee on Justice found the
impeachment complaints sufficient in form although the impeachment complaints
charge petitioner with the offenses of culpable violation of the Constitution and betrayal
of public trust. Petitioner argues that the impeachment complaints allege duplicitous
offenses.

The argument has no merit.

The impeachment procedure is analogous to a criminal trial but is not a criminal

prosecution per se.[7] While the Rules of Procedure provide for the suppletory application
of the Rules of Criminal Procedure in an impeachment proceedings, a strict application of
the Rules of Criminal Procedure is not required in impeachment proceedings, as can be
gleaned from the deliberations of the Constitutional Commission, thus:

MR. MAAMBONG. Let us go to a bottom-line question then. When the Senate acting as
body will now try the impeachment case, will it conduct the proceeding using principles
of criminal procedure?

MR. ROMULO. I do not think so, strictly speaking, that it need be criminal procedures. The
important thing, I believe, is that the involved party should know the charges and the
proceedings must be, in total, fair and impartial. I do not think we have to go to the
minutiae of a criminal proceeding because that is not the intention. This is not a criminal
proceeding per se.

MR. MAAMBONG. In the matter of presentation for example, of evidence, when it comes
to treason and bribery, would the rules on criminal procedure be applied, considering
that I am no particularizing on the ground which is punishable by the Revised Penal
Code, like treason or bribery?

MR. ROMULO. Yes, but we will notice that, strictly speaking for the crime of treason under
the Revised Penal Code, he is answerable for that crime somewhere else. So my
conclusion is that obviously, it is in the criminal court where we will apply all the
minutiae of evidence and proceedings and all these due processes. But we can be more
liberal when it comes to the impeachment proceedings, for instance, in the Senate,
because we are after the removal of that fellow, and conviction in that case really
amounts to his removal from office. The courts of justice will take care of the criminal
and civil aspects.[8]

Further, the impeachment complaint is not the same as the Articles of Impeachment. The
impeachment complaint is analogous to the affidavit-complaint of the private
complainant filed before the prosecutor for purposes of the preliminary investigation.
Such affidavit-complaint, prepared by the complainant, may allege several offenses. On
the other hand, Section 13, Rule 110 of the Revised Rules of Criminal Procedure refers to
the formal complaint or information prepared by the prosecutor and filed before the
court after the preliminary investigation. Such formal complaint or information must
charge only one offense against an accused. The Articles of Impeachment is prepared by
the Committee after it votes to recommend to the House Plenary the filing of
impeachment charges. The only requirement in preparing the Articles of Impeachment is
that there is only one specific charge for each article. The Articles of Impeachment, as its
name imply, may have several articles, each charging one specific offense. The
proceedings before the Committee on Justice is like a preliminary investigation in a
criminal case where there is no complaint or information yet.

As pointed out in the deliberations of the Constitutional Commission, the impeachment

proceeding is not a criminal prosecution. The impeachment proceeding covers not only
criminal acts but also non-criminal acts, such as betrayal of public trust, which is the
main charge against petitioner in both the First and Second Complaints. In Francisco, the
Court noted that the framers of the Constitution could find no better way to approximate
the boundaries of betrayal of public trust than by alluding to positive and negative
examples.[9] Thus:

THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. Thank you, Madam President.

I have a series of questions here, some for clarifications, some for the cogitative and
reading pleasure of the members of the Committee over a happy weekend without
prejudice later to proposing amendments at the proper stage.

First, this is with respect to Section 2, on the grounds for impeachment , and I quote:

. . . culpable violation of the Constitution, treason, bribery, other high crimes, graft and
corruption or betrayal of public trust.

Just for the record, what would the Committee envision as a betrayal of public trust
which is not otherwise covered by by other terms antecedent thereto?

MR. ROMULO. I think, if I may speak for the Committee and subject to further comments
of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it
refers to his oath of office, in the end that the idea of public trust is connected with the
oath of office of the officer, and if he violates that oath of office, then he has betrayed
the trust.

MR. REGALADO. Thank you.

MR. MONSOD. Madam President, may I ask Commissioner de los Reyes to perhaps add to
those remarks.

THE PRESIDENT. Commissioner de los Reyes is recognized.

MR. DE LOS REYES. The reason I proposed this amendment is that during the Regular
Batasang Pambansa where there was a move to impeach then President Marcos, there
were arguments to the effect that there is no ground for impeachment because there is
no proof that President Marcos committed criminal acts which are punishable, or
considered penal offenses. And so the term "betrayal of public trust," as explained by
Commissioner Romulo, is a catchall phrase to include all acts which are not punishable
by statutes as penal offenses but, nonetheless, render the officer unfit to continue in
office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical
abuse of power, breach of official duty by malfeasance or misfeasance, cronyism,
favoritism, etc. to the prejudice of public interest and which tend to bring the office into
disrepute. That is the purpose, Madam President.

Thank you.

MR. ROMULO. If I may add another example, because Commissioner Regalado asked a
very good question. This concept would include, I think, obstruction of justice since in his
oath he swears to do justice to every man; so if he does anything that obstructs justice,
it could be construed as a betrayal of public trust.

Thank you.

MR. NOLLEDO. In pursuing that statement of Commissioner Romulo, Madam President,

we will notice that in the presidential oath of then President Marcos, he stated that he
will do justice to every man. If he appoints a Minister of Justice and orders him to issue or
to prepare repressive decrees denying justice to a common man without the President
being held liable, I think this act will not fall near the category of treason, nor will it fall
under bribery of other high crimes, neither will it fall under graft and corruption. And so
when the President tolerates violations of human rights through the repressive decrees
authored by his Minister of Justice, the President betrays the public trust.[10]

Clearly, the framers of the Constitution recognized that an impeachment proceeding

covers non-criminal offenses. They included betrayal of public trust as a catchall
provision to cover non-criminal acts. The framers of the Constitution intended to leave it
to the members of the House of Representatives to determine what would constitute
betrayal of public trust as a ground for impeachment.

Even the United States Senate recognizes that the Articles of Impeachment can contain
various offenses. On 20 October 1989, the United States Senate impeached Judge Alcee
Hastings (Hastings).[11] Hastings was charged with 17 Articles of Impeachment ranging
from corrupt conspiracy, knowingly making a false statement intended to mislead the
trier of fact, fabrication of false documents, and improper disclosure by revealing highly
confidential information that he learned as a supervising judge in a wiretap.[12] Hastings
was convicted in 8 of the Articles of Impeachment and was removed from office. Hence,
there is nothing that would prevent the impeachment of petitioner for various offenses
contained in the Articles of Impeachment.

Moreover, the Court cannot review the sufficiency of the substance of the impeachment
complaints. The sufficiency of the substance will delve into the merits of the
impeachment complaints over which this Court has no jurisdiction.[13] The Court can
only rule on whether there is a gross violation of the Constitution in filing the
impeachment complaint, in particular, whether the complaint was filed in violation of the
one-year ban. The Court cannot review the decision of the Committee on Justice to
impeach. The Court ruled in Francisco:

The first issue[14] goes into the merits of the second impeachment complaint over which
this Court has no jurisdiction. More importantly, any discussion of this issue would
require this Court to make a determination of what constitutes an impeachable offense.
Such a determination is a purely political question which the Constitution has left to the
sound discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.[15]

Impeachment is a political process. Thus, the decision to impeach lies exclusively on

Congress. The most important thing in an impeachment proceeding is the vote by the
House Plenary. Section 10 of the Rules of Procedure states that "[a] vote of at least one-
third () of all Members of the House is necessary for the approval of the resolution
setting forth the Articles of Impeachment. If the resolution is approved by the required
vote, it shall then be endorsed to the Senate for its trial." The Rule is based on Section 3
(4), Article XI of the 1987 Constitution which states:

Sec. 3. x x x

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

The Constitution is clear. After the vote of one-third of all the Members of the House is
achieved, the Articles of Impeachment will automatically be forwarded to the Senate for
trial. The Constitution only requires the vote of one-third of all the Members of the House
for the Articles of Impeachment to be forwarded to the Senate whether or not the
complaint is sufficient in form and substance.

Finally, there is no violation of petitioner's right to due process. Nobody can claim a
vested right to public office. A public office is not a property right, and no one has a
vested right to any public office.[16] Thus:

Again, for this petition to come under the due process of law prohibition, it would
necessary to consider an office a "property." It is, however, well settled x x x that a
public office is not property within the sense of the constitutional guaranties of due
process of law, but is a public trust or agency. x x x The basic idea of the government x x
x is that of a popular representative government, the officers being mere agents and not
rulers of the people, one where no one man or set of men has a proprietary or
contractual right to an office, but where every officer accepts office pursuant to the
provisions of the law and holds the office as a trust for the people he represents.[17]

Accordingly, I vote for the dismissal of the petition and the lifting of the status quo ante
order issued by this Court against the House of Representatives.

--------------------------------------------------------------------------------
[1] Under Rule 65 of the 1997 Rules of Civil Procedure.

[2] 460 Phil. 830 (2003).

[3] Id. at 932. Emphasis supplied.

[4] Supra, note 2.

[5] Section 16.

[6] Section 13. Duplicity of the offense.--A complaint or information must charge only one
offense, except when the law prescribes a single punishment for various offenses.

[7] 2 Record of the Constitutional Proceedings and Debates, 277.

[8] Id.

[9] Francisco, Jr. v. House of Representatives, supra note 2.

[10] 2 Record of the Constitutional Proceedings and Debates, 272.

[11]
http://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role
.htm#4.

[12]
http://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.ht
m.

[13] Francisco, Jr. v. House of Representatives, supra note 2.

[14] Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offense under the Constitution.

[15] Francisco, Jr. v. House of Representatives, supra note 2, at 913.

[16] Montesclaros v. Comelec, 433 Phil. 620 (2002).

[17] Id. at 637-638, citing Cornejo v. Gabriel, 41 Phil. 188 (1920). Emphasis in the original
text.

--------------------------------------------------------------------------------

SEPARATE OPINION

NACHURA, J.:
Justice Conchita Carpio Morales once again impresses with her incisive and tightly
written ponencia. While I agree with the defenestration[1] of the petition, I am
constrained to express my views on the ripeness of the issues posed by petitioner.

Before anything else, however, the antecedents.

Taking the cue from "matuwid na landas," the theme of President Benigno C. Aquino III's
inaugural address, private respondents Risa Hontiveros-Baraquel, Danilo Lim, and
spouses Felipe and Evelyn Pestao filed an impeachment complaint (Baraquel
Complaint) on July 22, 2010, against petitioner Ombudsman Ma. Merceditas Gutierrez.

On July 26, 2010, the 15th Congress opened its first session, and representative Feliciano
Belmonte was elected Speaker of the House of Representatives. The very next day, or on
July 27, 2010, Atty. Marilyn Barua-Yap, Secretary-General of the House of
Representatives, transmitted the impeachment complaint to House Speaker Feliciano
Belmonte. In a Memorandum dated August 2, 2010, Speaker Belmonte directed the
Committee on Rules to include the complaint in the Order of Business.

On August 3, 2010, the House of Representatives received yet another impeachment

complaint against petitioner, which was filed by private respondents Renato Reyes, Jr.,
Mother Mary John Mananzan, Danilo Ramos, Edre Olalia, Ferdinand Gaite, and James
Terry Ridon (Reyes Complaint). On even date, the Secretary-General transmitted the
Reyes Complaint to Speaker Belmonte. In turn, as he had done with the previous
complaint, Speaker Belmonte directed the Committee on Rules to include the Reyes
Complaint in the Order of Business. Further, on even date, the House of Representatives
provisionally adopted the Rules of Procedure in Impeachment Proceedings of the 14th
Congress.

Parenthetically, both the Baraquel[2] and Reyes[3] Complaints were endorsed by

Members of the House of Representatives, as mandated in the Constitution.[4] The two
complaints separately alleged betrayal of public trust and culpable violation of the
Constitution, to wit:

1. Baraquel Complaint

I.

OMBUDSMAN MA. MERCEDITA[S] NAVARRO-GUTIERREZ BETRAYED THE PUBLIC TRUST

.

i.

THE DISMAL AND UNCONSCIONABLY LOW CONVICTION RATES ACHIEVED BY THE OFFICE
OF THE OMBUDSMAN FROM 2008 ONWARD INDICATE A CRIMINAL LEVEL OF
INCOMPETENCE AMOUNTING TO GRAVE DERELICTION OF DUTY x x x.

ii.

THE UNREASONABLE FAILURE OF THE OMBUDSMAN TO TAKE PROMPT AND IMMEDIATE

ACTION, IN VIOLATION OF ITS OWN RULES OF PROCEDURE, ON THE COMPLAINTS FILED
AGAINST VARIOUS PUBLIC OFFICIALS INCLUDING FORMER PRESIDENT GLORIA
MACAPAGAL-ARROYO, AND HER HUSBAND JOSE MIGUEL T. ARROYO WITH REGARD TO
THE NBN-ZTE BROADBAND PROJECT x x x.

iii.
THE INEXCUSABLE DELAY OF THE OMBUDSMAN IN CONDUCTING AND CONCLUDING ITS
INVESTIGATION INTO THE WRONGFUL DEATH OF ENSIGN PHILIP ANDREW PESTAO
ABOARD A PHILIPPINE NAVY VESSEL x x x.

iv.

THE DECISION OF THE OMBUDSMAN UPHOLDING THE "LEGALITY" OF THE ARREST AND
INVOLUNTARY DETENTION OF THEN REPRESENTATIVE RISA HONTIVEROS-BARAQUEL BY
THE PHILIPPINE NATIONAL POLICE IN MARCH 2006 IN VIOLATION OF THE EXPLICIT RULES
PROVIDED IN THE REVISED PENAL CODE AND AS ESTABLISHED BY JURISPRUDENCE x x x.

v.

THE FAILURE OF THE OMBUDSMAN TO CONDUCT AN INVESTIGATION INTO POSSIBLE

WRONGDOING OR IMPROPRIETY WITH REGARD TO THE P1,000,000.00 DINNER FOR THE
PRESIDENTIAL PARTY AT LE CIRQUE RESTAURANT IN NEW YORK IN AUGUST 2009 DESPITE
WIDESPREAD MEDIA COVERAGE AND PUBLIC CLAMOR, AND A FORMAL LETTER FROM
REPRESENTATIVE WALDEN F. BELLO CALLING FOR AN INQUIRY CONSTITUTES BETRAYAL
OF THE PUBLIC TRUST.

II.

OMBUDSMAN MA. MERCEDITAS NAVARRO-GUTIERREZ PERFORMED ACTS AMOUNTING TO

CULPABLE VIOLATION OF THE CONSTITUTION

vi.

THE REPEATED FAILURES OF THE OMBUDSMAN TO TAKE PROMPT ACTION ON A WIDE

VARIETY OF CASES INVOLVING OFFICIAL ABUSE AND CORRUPTION VIOLATES (sic)
ARTICLE XI, SECTION 12 AND ARTICLE III, SECTION 16 OF THE CONSTITUTION, WHICH
MANDATE PROMPT ACTION AND SPEEDY DISPOSITION OF CASES.

vii.

THE REFUSAL OF THE OMBUDSMAN TO GRANT READY ACCESS TO PUBLIC RECORDS

SUCH AS THE STATEMENT OF ASSETS AND LIABILITIES AND NET WORTH (SALN)
REQUIRED OF ALL PUBLIC OFFICERS UNDER REPUBLIC ACT NO. 6713 CONSTITUTES A
CULPABLE VIOLATION OF ARTICLE XI, SECTION 13(6) AND ARTICLE III, SECTION 7 OF THE
CONSTITUTION.[5]

2. Reyes Complaint

I. BETRAYAL OF TRUST

(1) OMBUDSMAN GUTIERREZ COMMITTED BETRAYAL OF PUBLIC TRUST THROUGH HER

GROSS INEXCUSABLE DELAY IN INVESTIGATING AND FAILURE IN PROSECUTING ANY ONE
OF THOSE INVOLVED [I]N THE ANOMALOUS TRANSACTIONS ARISING FROM THE
FERTILIZER FUND SCAM DESPITE THE BLATANT ANOMALOUS TRANSACTIONS REVEALED
IN THE COA FINDINGS, SENATE COMMITTEE REPORT 54 AND THE COMPLAINTS FILED
WITH [PETITIONER] ON THE "FERTILIZER SCAM."

(2) OMBUDSMAN GUTIERREZ COMMITTED BETRAYAL OF PUBLIC TRUST WHEN SHE DID
NOT PROSECUTE GEN. ELISEO DE LA PAZ FOR VIOLATING BSP CIRCULAR 98 (1995), AS
AMENDED BY BSP CIRCULAR 507 (2006), IN RELATION TO REPUBLIC ACT 6713, WHICH
PROHIBITS THE TAKING OUT OF THE COUNTRY OF CURRENCY IN EXCESS OF
US$10,000.00 WITHOUT DECLARING THE SAME TO THE PHILIPPINE CUSTOMS, DESPITE
THE FACT THAT GEN. ELISEO DE LA PAZ PUBLICLY ADMITTED UNDER OATH BEFORE THE
SENATE BLUE RIBBON COMMITTEE THAT HE TOOK OUT OF THE COUNTRY CURRENCY IN
EXCESS OF US$10,000.00 WITHOUT DECLARING THE SAME [TO] THE PHILIPPINES
CUSTOMS.

(3) OMBUDSMAN GUTIERREZ BETRAYED THE PUBLIC TRUST THROUGH HER GROSS
INEXCUSABLE DELAY OR INACTION BY ACTING IN DELIBERATE DISREGARD OF THE
SUPREME COURT'S FINDINGS AND DIRECTIVE IN ITS DECISION AND RESOLUTION IN
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, ET AL. V. COMMISSION
ON ELECTIONS, ET AL.

II. CULPABLE VIOLATION OF THE CONSTITUTION

THROUGH HER REPEATED FAILURES AND INEXCUSABLE DELAY IN ACTING UPON THE
MATTERS BROUGHT BEFORE HER OFFICE, OMBUDSMAN GUTIERREZ VIOLATED SECTION
12 AND SECTION 13, PARAGRAPHS 1, 2 AND 3, ARTICLE XI ON WHICH HER
CONSTITUTIONAL DUTY IS ENSHRINED, AS WELL AS SECTION 16, ARTICLE III OF THE
CONSTITUTION, WHICH MANDATES PROMPT ACTION AND SPEEDY DISPOSITION OF
CASES.[6]

On August 10, 2010, upon the instruction of House Majority Leader Neptali Gonzales II,
Chairperson of the Committee on Rules, the two impeachment complaints were included
in the Order of Business for the following day, August 11, 2010.

On August 11, 2010, during its plenary session, the House of Representatives
simultaneously referred both complaints to public respondent House Committee on
Justice.

In a Resolution dated September 1, 2010, the House Committee on Justice found both
complaints sufficient in form.

On September 2, 2010, the Rules of Procedure in Impeachment Proceedings of the 15th

Congress was published.

On September 6, 2010, petitioner attempted to file a motion for reconsideration of the

September 1, 2010 Resolution of public respondent House Committee on Justice, which
found both complaints sufficient in form. However, the House Committee on Justice, did
not accept the motion, and informed petitioner that she should instead file her answer to
the complaints upon her receipt of notice thereof, along with copies of both complaints.

At the hearing on September 7, 2010, public respondent House Committee on Justice

issued a Resolution finding both complaints sufficient in substance. Posthaste, on the
same date, petitioner was served notice directing her to file an answer within ten (10)
days.

Alleging grave abuse of discretion amounting to excess of jurisdiction by public

respondent House Committee on Justice in issuing the Resolutions dated September 1
and 7, 2010, which found the impeachment complaints sufficient in form and substance,
respectively, petitioner filed the present petition for certiorari and prohibition with prayer
for the issuance of injunctive reliefs.
Foremost in petitioner's arguments is the invocation of our ruling in the trailblazing case
of Francisco, Jr. v. The House of Representatives.[7] Petitioner points out that in taking
cognizance of the two (2) complaints and requiring her to file an answer thereto, public
respondent violated the constitutional prohibition against the initiation of impeachment
proceedings against the same official more than once within a period of one year.[8] Not
unexpectedly, petitioner advances that the ruling in Francisco definitively declares that
the initiation of impeachment proceedings plainly refers to the filing alone of an
impeachment complaint. In all, petitioner is of the view that the sole act of filing one (1)
impeachment complaint forecloses all situations for the filing of another impeachment
complaint within a given year.

Petitioner likewise raises the alleged violation of her right to due process of law, in both
its substantive and procedural aspects.

Essentially, petitioner claims that the House Committee on Justice committed various
violations equivalent to grave abuse of discretion amounting to excess of jurisdiction. In
other words, the House Committee on Justice violated the Constitution; hence, the Court
must intervene.

I believe that the issue for resolution is not yet upon us; the issues, as presented by
petitioner, are palpably not ripe for adjudication.

Curiously, despite the effusive petition before us, petitioner did not file an answer to the
complaints despite receipt of notice to do so. Instead, petitioner came directly for
succour to this Court.

The power of judicial review is not boundless and not without limitation. The expanded
jurisdiction of this Court, notwithstanding, invocation of judicial review requires that the
issues presented are ripe for adjudication. Unfortunately, it is my view that the facts
obtaining herein do not, as yet, permit judicial intervention. The supplications contained
in the petition are premature and ought to be brought first before the House Committee
on Justice.

Lozano v. Nograles[9] instructs us on the two-fold aspect of ripeness:

An aspect of the "case-or-controversy" requirement is the requisite of "ripeness." In the

United States, courts are centrally concerned with whether a case involves uncertain
contingent future events that may not occur as anticipated, or indeed may not occur at
all. Another approach is the evaluation of the twofold aspect of ripeness: first, the fitness
of the issues for judicial decision; and second, the hardship to the parties entailed by
withholding court consideration. In our jurisdiction, the issue of ripeness is generally
treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual
challenging it. An alternative road to review similarly taken would be to determine
whether an action has already been accomplished or performed by a branch of
government before the courts may step in.

Hewing closely to the foregoing is the second, albeit less popular, case of Francisco v.
The House Committee on Justice,[10] where we dismissed the petition on the ground of
prematurity:

Ripeness and prematurity are correlated matters. For a case to be considered ripe for
adjudication, it is a prerequisite that something had by then been accomplished or
performed by either branch before a court may come into the picture. Only then may the
courts pass on the validity of what was done, if and when the latter is challenged in an
appropriate legal proceeding. On the other hand, prematurity deals with the question of
whether all remedies have been exhausted before resort to the courts could be had.
In this case, the resolution of the Committee on Justice to treat the Amended Complaint
as a second impeachment complaint is yet to be passed upon by the House in a plenary
session.

xxxx

Thus, the Committee on Justice should submit to the House a report on its action to treat
the Amended Complaint as a second impeachment complaint and also on its
determinations on the sufficiency in form and substance of the impeachment complaint.
Then, the report shall be deliberated and acted upon by the House. The Court should,
therefore, wait until after all the remedies in the House are exhausted. Indeed, this is not
yet the auspicious time to resolve the issues raised in the petition.

We find striking similarities between the second Francisco and the case at bar. Petitioner
has yet to formally answer and appear before the House Committee on Justice. The
House Committee on Justice has not been given opportunity to address the points raised
by petitioner in her petition before us, which the latter could very well raise before public
respondent.

Applying the rule on the two-fold aspect of ripeness used in other jurisdictions and the
demonstration of actual injury to pass the test of ripeness in this jurisdiction, it is quite
obvious to me that, at this juncture, petitioner has not established the fitness of the
issues for our decision, hardship if we withhold consideration, much less actual injury to
petitioner.

A juxtaposition of the timeline for the initiation of impeachment complaints mapped out
in Section 3(2), Article XI of the Constitution, which provides:

SEC. 3. (1) x x x.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

and Sections 2 and 3, Rule II of the Rules of Procedure in Impeachment Proceedings

which read:

RULE II
INITIATING IMPEACHMENT

Section 2. Mode of Initiating Impeachment. - Impeachment shall be initiated by the filing

and subsequent referral to the Committee on Justice of:

(a) a verified complaint for impeachment filed by any Member of the House of
Representatives; or

(b) a verified complaint filed by any citizen upon a resolution of endorsement by any
member thereof; or

(c) a verified complaint or resolution of impeachment filed by at least one-third (1/3) of

all Members of the House.
Section 3. Filing and Referral of Verified Complaints. - A verified complaint for
impeachment by a Member of the House or by any citizen upon a resolution of
endorsement by any member thereof shall be filed with the Office of the Secretary-
General and immediately referred to the Speaker.

The Speaker shall have it included in the Order of Business within ten (10) session days
from receipt. It shall then be referred to the Committee on Justice within three (3) session
days thereafter.

do not indicate any deviation from the constitutional mandate. It cannot be

overemphasized that petitioner has yet to formally appear before public respondent, and
the latter has not yet terminated its hearing of the impeachment complaints. Clearly,
there is no constitutional violation justifying this Court's intervention even without
delving into the burning question of whether the initiation proceedings are deemed
initiated with the mere filing of a complaint, and its referral to the House Committee on
Justice, or should await the submission of a report by the House Committee on Justice.

In fact, during oral arguments, the following was limned:

JUSTICE NACHURA:

In fact, I would like to believe, therefore, Justice Cuevas, that when you make a reference
to a violation of due process in this particular case, it is really a violation of the
procedural aspect of due process, primarily the first requisite of due process which is
that there must be an impartial court or tribunal with authority to hear and decide a
case. And that was the first statement you made. The Committee on Justice deprived the
petitioner of due process because of its haste, its partiality and its vindictiveness. Those
were your words.

RET. JUSTICE CUEVAS:

Right, Your Honor.

JUSTICE NACHURA:

All right. However, when you developed this, you said there was delay in the filing or in
the referral of the first complaint because the first complaint was filed on July 22...

RET. JUSTICE CUEVAS:

July 22, 2010, Your Honor.

JUSTICE NACHURA:

The second complaint was filed on August 3, 2010?

RET. JUSTICE CUEVAS:

Yes, Your Honor.

JUSTICE NACHURA:

And both complaints were referred only to the Committee on Justice on August 11, 2010?

RET. JUSTICE CUEVAS:

On the same day at the same time.

JUSTICE NACHURA:

The same day at the same time on August 11, 2010?

RET. JUSTICE CUEVAS:

We do not want to believe, Your Honor, that this was intentional. But it cannot be
accidental. Same day, same time, Your Honor. Why will it take the Speaker of the House
twenty (20) days before a referral of the impeachment complaint number 1 is made to
the Committee on Justice and only eight days (8) days insofar as the second
impeachment complaint?

JUSTICE NACHURA:

Justice Cuevas, I am looking at a calendar right now. On July 22, Congress had not yet
started its sessions. It was only on July 26 that sessions in Congress started with the
delivery by the President of the State of the Nation Address. And in the House, I am sure,
there was still no organization of the committees by then. It would have taken, perhaps,
at least a week, maybe two (2) weeks, before the committees could be truly organized
by the leadership of the House. And if you count two (2) weeks from July 26, you would
go to around August 9 and that would be near August 11. Obviously, we cannot impute
vindictiveness or partiality on the basis of this alleged delay in the referral of the
complaints.

xxxx

RET. JUSTICE CUEVAS:

Our charge of impartiality does not merely gravitate on that particular aspect, Your
Honor. x x x.[11]

On that point, counsel for petitioner obviously yielded.

Very apparent from all the foregoing is that a contingent event is still about to unfold,
specifically, the Answer to be filed by petitioner, which public respondent has yet to hear
and rule on. The Constitution, in no uncertain terms, declares that the Committee should
hear the complaint, and after hearing, submit a report to the House within sixty (60)
days from referral thereof. A co-equal branch of government has not committed a
positive act, i.e., to hear the defenses raised by petitioner in her Answer; we have no
business to interfere, especially at this stage. Public respondent House Committee on
Justice must be allowed to conduct and continue its hearing of the impeachment
complaints against petitioner. At that stage, petitioner's apprehensions of the
Committee's partiality and vindictiveness would, perhaps, become justified.

I vote to DISMISS the petition.

--------------------------------------------------------------------------------
[1] The act of throwing someone or something out of a window. The term is associated
with political dissidence and political assassinations in 15th to 17th century Prague
where rioters made a habit of it. There was one in 1419 at the Town Hall where a mob,
demanding the release of prisoners, threw councillors out, and a more famous one -
known as the Defenestration of Prague - in 1618 which heralded the 30-Year War when a
gang of Protestant nobles threw two Catholic governors out of the window of the Royal
Palace. (See [visited February 14, 2011].)

[2] Endorsed by Party-list Representatives, Kaka Bag-ao and Walden Bello of the Akbayan
Party-list.

[3] Endorsed by Party-list Representatives Neri Javier Colmenares of Bayan Muna, Teodor
Casio of Bayan Muna, Rafael Mariano of Anakpawis, Luzviminda C. Ilagan of Gabriela,
Raymond V. Palatino, Antonio L. Tinio of Act Teacher, Emerenciana A. De Jesus of
Gabriela.

[4] Art. XI, Sec. 3(2).

[5] Annex "F" of the Petition.

[6] Annex "G" of the Petition.

[7] 460 Phil. 830 (2003).

[8] CONSTITUTION, Art. XI, Sec. 3(5).

[9] G.R. Nos. 187883 and 187910, June 16, 2009, 589 SCRA 356, 358-359.

[10] Extended Resolution, G.R. No. 169244, September 1, 2005.

[11] TSN, October 5, 2010, pp. 88-91.

--------------------------------------------------------------------------------

DISSENTING OPINION

BRION, J.:

I dissent from the ponencia's conclusion that the proceedings before the House of
Representatives Committee on Justice (Justice Committee) are constitutional. These
proceedings were undertaken without the benefit of duly published and fully effective
rules of impeachment and are, thus, fatally infirm for violation of the petitioner's right to
due process.
I believe, too, that we should revisit our ruling in Francisco v. House of
Representatives[1] as we did not apply the proper consideration when we determined
the back-end of the initiation phase of the impeachment proceedings. The initiation
phase should start at the filing of the impeachment complaint and end when the Justice
Committee determines that the impeachment is sufficient in form and substance.

Thus, I vote to grant the petition.

I. Publication and Due Process

a. The Due Process Objection

In the course of assailing the actions of the House of Representatives

in its impeachment proceedings, the petitioner raised various due process grounds, both
substantive and procedural. The threshold issue, however, that must be met before any
substantive due process consideration can be made, is whether there were valid and
effective rules of impeachment in place, as required by Section 3(8) of Article XI of the
Constitution, when the House of Representatives embarked on the impeachment
process.

To the petitioner, the Justice Committee failed to properly determine the sufficiency in
form of the two impeachment complaints against her since no valid and effective rules of
impeachment were in place when the Justice Committee ruled on these matters; the
impeachment rules of the 15th Congress were published a day after the Justice
Committee ruled that the complaints were sufficient in form. While the impeachment
rules were published on September 2, 2010, they were not yet effective when the Justice
Committee ruled that the impeachment complaints were sufficient in substance on
September 7, 2010. Because no valid rules were in place when the Justice Committee
initially acted and ruled on the impeachment complaints, a fatal transgression of the
petitioner's right to due process occurred.

b. Justification for Judicial Intervention

Impeachment proceedings are political processes that the Constitution places within the
exclusive domain of the legislature. Section 3(1), Article XI of the Constitution plainly
states that: "The House of Representatives shall have the exclusive power to initiate all
cases of impeachment." Section 3(6) of the same article grants to the Senate the sole
power to try and decide all cases of impeachment. Even the drafting of the impeachment
rules is specifically entrusted to the House of Representatives.

At the same time that it entrusts the impeachment process to the House of
Representatives, the Constitution also provides clear standards and guidelines for the
House of Representatives to follow to ensure that it does not act arbitrarily. Among these
are: the specification of the grounds for impeachment,[2] the periods within which an
impeachment complaint should be acted on,[3] the voting requirements,[4] the one year
bar on initiating an impeachment process,[5] and the promulgation of the impeachment
rules.[6] Unwritten in the article on impeachment but, nevertheless, fully applicable are
the guaranteed individual rights that the House of Representatives must absolutely
respect.[7] To the extent of these standards and guidelines, the Court - otherwise
excluded from the impeachment process - plays a part in its traditional role as
interpreter and protector of the Constitution.[8] The House of Representatives must act
within the limits the Constitution has defined; otherwise, the Court, in the exercise of
judicial review, can act and has the duty to strike down any action committed with grave
abuse of discretion or in excess of jurisdiction.[9]

c. The Need for Prior Publication

The Constitution specifically provides that the House of Representatives must

promulgate its rules on impeachment to effectively carry out the purpose of Section 3,
Article XI that, together with Section 2, deals specifically with the House of
Representatives' power of impeachment.

To "promulgate" means to publish or to announce officially.[10] By law, publication is

necessary for a statute, law or rule to become effective;[11] Article 2 of the Civil Code
provides that laws shall take effect after 15 days following their publication, unless the
law provides for another period. Publication is required as a condition precedent to the
effectivity of a law to inform the public of the contents of the law, rules or regulations
before these enactments take effect and affect the public's rights and interests.[12] As a
matter of basic fairness, "notice" is required before the public's rights and interests are
placed at risk. In constitutional law terms, this is the guarantee of due process.[13]

We explained in Lorenzo M. Taada, et al. v. Hon. Juan C. Tuvera, etc., et al.[14] that the
failure to publish a law or rule offends due process; it denies the public knowledge of the
laws that affect them and removes the basis for the presumption that every person
knows the law. The term "law" covers laws of general, as well as local, application; it
embraces legislative enactments as well as executive orders, presidential decrees, and
administrative rules. The only exceptions to the rule on publication are interpretative
regulations and those that are merely internal in nature, i.e., those regulating only the
personnel of an administrative agency and not the public.

The impeachment rules do not fall under the exceptions. Like the Monetary Board
circulars that do not only interpret but also "fill in the details" of the Central Bank Act,
the impeachment rules which interpret, implement and fill in the details of the
constitutional impeachment provisions must also be published.[15] Significantly, even
the ponencia states that the impeachment rules mandated by Section 3(8), Article XI of
the Constitution were intended "to fill the gaps in the impeachment process."[16] These
rules cannot be considered as internal rules that merely regulate the performance of
subordinates and, hence, are exempted from publication. They are rules that gravely
affect the rights of impeachable officials; an impeachment conviction results in the public
official's removal from office and disqualification to hold any public office in the
Philippines. The impeachment rules likewise affect a public right; it is a matter of public
interest to uphold standards applicable to public officials in the highest positions in the
performance of their duties; they are the balancing measures to ensure that our public
officials are continually held accountable in the performance of their functions. The fact
that the Constitution itself allows "any citizen" to file an impeachment complaint already
draws the public as a party with an interest to protect in the impeachment process.

It is a matter of record that the House of Representatives of the 15th Congress has seen
it fit and proper to publish the rules of impeachment, although the publication came too
late for the proceedings before the. Records show that the Rules of Procedure in
Impeachment Proceedings of the Fifteenth Congress (Rules of Impeachment) was
published on September 2, 2010. Under Article 2 of the Civil Code, these Rules became
valid and binding only on September 17, 2010. However, both parties admit that before
September 17, 2010, the two impeachment complaints had already been filed[17] and
referred to the Justice Committee;[18] that it had already held a hearing and voted that
both complaints were sufficient in form; and that it had subsequently conducted another
hearing and voted that both complaints were sufficient in substance.[19]

To rebut the petitioner's allegation of due process violation for non-publication of the
impeachment rules, the ponencia asserts that the petitioner was fully apprised of the
impeachment procedure and had even invoked the rules. This justification, however,
cannot fully suffice to do away with full publication.[20] Compliance with the
requirements of publication cannot be excused based on allegations that the party or
parties involved had been notified of the existence of the rules.[21] In National
Association of Electricity Consumers for Reforms v. Energy Regulatory Commission,[22]
the participation of the parties involved in a previous public consultation and their
submission of comments on the proposed rules did not do away with the requirement to
publish these rules before they could take effect. The plain and obvious reason for this
ruling, of course, is that the binding effect of laws, rules and regulations cannot be made
to depend on the actual knowledge of their terms by the affected individuals and
entities. The fact of publication assumes, by legal fiction, that all affected parties have
been notified and are aware of applicable laws, rules and regulations; thereafter, the
published enactments govern affected parties and their actions.

According to the ponencia, publication is not required since "promulgation" is not the
same as "publication"; she alludes to certain legal provisions on the Judiciary's issuance
of judgments where the "promulgation" of orders or decisions does not require
publication. The ponencia further cites National Association of Electricity Consumers for
Reforms[23] as justification.

The comparison of impeachment rules with court rulings is far from apt. Court rulings
are pronouncements by the judicial branch of government on specific cases affecting
specific parties on defined issues. As a rule, these rulings affect only the immediate
parties to the case and their successors-in-interest;[24] hence, the public has no
immediate interest that may be directly affected, and need not be informed about the
court rulings.

In contrast, laws, rules and regulations, as a rule, affect the public in general and for this
reason, they must be brought to the attention of the public. This reason underlies the
rule on publication under Article 2 of the Civil Code and the rule under the
complementary Article 3 that ignorance of the law excuses no one from compliance with
its terms. These provisions fully apply to impeachment rules as these rules affect
everyone - the impeachable officials; the House of Representatives itself as the
constitutional body charged with the initiation of the impeachment process; the
members of the House of Representatives; the citizenry who can bring impeachment
complaints; and the public at large who have a stake in the due performance of duties by
their public officers.

From these perspectives, the term "promulgation," as used by the courts with respect to
its decisions and rulings, cannot be directly compared and equated with "promulgation,"
as used with respect to laws and other enactments passed by the legislature; the latter
require publication before they become fully effective. Notably, the Judiciary itself is not
exempt from the obligation to publish rules that bind the public in general before these
rules acquire binding effect. The Supreme Court publishes its procedural rules because
they affect the litigating public; the Rules of Court requires the element of publication in
"in rem" cases where court rulings are intended to bind the public in general.

Incidentally, the ponencia's cited National Association of Electricity Consumers for

Reforms case[25] cannot be used to support the proposition that promulgation excludes
the act of publication. In this case, the Court did not come up with a categorical
statement that promulgation should be construed to exclude publication. Even if the
term "promulgation"[26] had been loosely used, the focus of the case was on the need to
publish rules before they become effective.

The ponencia also points out that even if Section 3 of Article VII of the Constitution
requires the promulgation of rules for the canvassing of election certificates, the House
of Representatives did not publish these rules.[27] This justification likewise carries very
little supportive weight as the failure of the House of Representatives to publish rules -
that, by law, must be published - does not do away with the publication requirement.

I particularly reject the ponente's statement that there is no other single formal term in
the English language to appropriately refer to an issuance without the need of it being
published.[28] Several terms contradicting this statement immediately come to mind;
instead of using the word "promulgate," the words issue, adopt, set forth, establish, and
determine may be used, depending on the context. Thus, I cannot give any merit to the
ponencia's claim.

I, likewise, cannot accept the implication from the ponencia that the Constitutional
Commission may have used the word "promulgate" in Section 3(8), Article XI in a sense
different from its established legal meaning. The members of the Constitutional
Commission are legal experts whose deliberative records this Court did not hesitate to
cite as authorities in the earlier Francisco case[29] that first ruled on impeachment under
the 1987 Constitution. At the time the 1987 Constitution was discussed and passed,
Article 2 of the Civil Code and the Taada ruling were already both in place. In both
rulings, the general legal usage of the term "promulgation" with respect to laws, rules
and regulations denotes "publication." Had a meaning other than this usage been
intended, the members of the Constitutional Commission could have plainly so stated,
i.e., that publication of the rules on impeachment is not necessary. The reality is that the
Constitutional Commission members did not see the need to so state because
publication is a given. Significantly, even the members of the 15th Congress - who
themselves are experts in crafting legislations - impliedly recognized the need for
publication as they, in fact, did publish their rules on impeachment,[30] although their
publication was too late for the proceedings of the . Under these circumstances, it
requires a considerable stretch of the imagination to claim that the term "promulgate"
should be understood to be divorced from the requirement of publication.

Even if I were to accept the ponencia's position that "to promulgate" simply means "to
make known" and not necessarily "to publish," the ponencia does not state how the 15th
Congress made its impeachment rules known to the public other than through the
publication it undertook[31] (which rendered the rules of impeachment effective only on
September 17, 2010 or after the Justice Committee had acted on the impeachment
complaints). With this omission, the 15th Congress cannot be said to have complied with
Section 3(8), Article XI of the Constitution in relation to Article 2 of the Civil Code and
with existing jurisprudence on this point prior to September 17, 2010.

In Romulo L. Neri v. Senate Committee on Accountability of Public Officers and

Investigations, et al.[32] we ruled that the Senate must publish the rules for its
legislative inquiries in each Congress or otherwise make the published rules clearly state
that the same shall be effective in subsequent Congresses or until they are amended or
repealed, to sufficiently put the public on notice on the applicable rules.[33] As the Court
explained then, the Senate is not bound by the rules adopted by the previous Senate. In
the same manner, a succeeding House of Representatives cannot simply adopt the rules
of the preceding House of Representatives without publication of the rules or the fact of
their adoption. Simple adoption of the rules, without the required publication, leaves the
House of Representatives with no effective rules binding on the public.

Contrary to the ponencia, the fact that the applicable provision in Neri[34] - Section 21,
Article VI of the Constitution - uses the word "publish" instead of "promulgate" does not
justify a different interpretation of Section 3(8), Article XI of the Constitution. A
justification for the need to publish the rules in aid of legislative inquiries is to protect the
witnesses who may be cited for contempt. Impeachable officials and witnesses in
impeachment proceedings are no less entitled to the same protection as they are
likewise subject to the contempt powers of the House of Representatives in these
proceedings. Additionally, impeachable officials stand to be removed from office,
prevented from taking any other government post, and made to experience the
humiliation that an impeachment necessarily brings. These risks define the standards of
fairness an impeachable officer is entitled to in an impeachment proceeding, whether at
the House of Representatives or in the Senate. At the very least, duly published and
effective rules of impeachment must be in place to afford the official sought to be
impeached the fairness that Section 1, Article III of the Constitution demands.[35]

To be sure, the belated publication of the Rules cannot have the retroactive effect of
curing the infirmity that existed before the publication took place; the guarantee of due
process is not served by a belated notice as a violation has by then already occurred.
Precisely, publication is a condition precedent to the effectivity of the law.[36]

The ponencia also posits that the lack of publication would not nullify the proceedings
taken prior to the effectivity of the impeachment rules, because the 15-day period after
publication would run counter to the mandated periods under Section 3, Article XI of the
Constitution.

I find this argument unpersuasive for two very practical reasons.

First, the due process guarantee does not strictly require that the time gap between the
publication and the effectivity of an enactment be fifteen (15) days. The clear terms of
Article 2 of the Civil Code show that the House of Representatives has the discretion to
specify a period lesser than 15 days before a statute, law or rule becomes effective.
Thus, it could have provided for a shorter period if its intent had been to ensure
compliance with the impeachment periods imposed by the Constitution. Unfortunately, it
did not so provide and this failure cannot now be used as an argument against the
application of the publication requirement.

Second, three (3) periods regulate the actions of the House of Representatives on the
impeachment proceedings. The first is the inclusion in the Order of Business which shall
be made within 10 session days from the filing of the impeachment complaint. The
second is the three-session-day period within which to refer the complaint to the proper
committee. The third is the sixty-session-day period for the committee to report out its
actions and recommendations to the plenary. All these are mandatory periods. But of
these periods, the first two involve specific actions of the House of Representatives that
are required by the Constitution itself and cannot, thus, be affected by the Rules. The
committee actions, on the other hand, have been left by the Constitution[37] for the
House of Representatives to determine and undertake at its discretion, subject only to
the requirement of a hearing; to the vote required to decide at the committee; and to the
general provisions of the Constitution on the protection of the constitutional rights of the
impeachable official. The temporal constitutional limitation is on the period given to the
committee to act - it must complete its proceedings and report back to the House of
Representatives in plenary within 60 session days from the referral.

Under the attendant facts of the case where the publication of the adopted Rules of
Impeachment came after the impeachment complaints had been referred to the Justice
Committee for action, the required 15-day period before it took effect necessarily fell
within the mandatory 60-session-day period given to the Committee. Thus, the
opportunity to act within the mandatory 60-session-day period was lessened by the 15-
day waiting time for the impeachment rules to take effect.

The intrusion of the publication period on the mandatory period for action by the Justice
Committee, however, does not necessarily mean that the publication requirement must
give way to the constitutional mandatory period because the mandatory 60-session-day
period has not repealed or modified, impliedly or expressly, the publication requirement.
No facial repeal is evident from Section 3(8) of Article XI of the Constitution, nor is there
any plain intent to do away with the publication requirement discernible from the terms
of the constitutional provision. Neither is there any irreconcilable inconsistency or
repugnancy between the two legal provisions.[38] Thus, no reason exists in law
preventing the two legal requirements from standing side by side and from being applied
to the attendant facts of the case.

An important consideration in the above conclusion relates to the length of the

respective mandatory periods. The Justice Committee is given 60 session days (i.e., not
only 60 calendar days) within which to act, while the period involved under Article 2 of
the Civil Code is 15 calendar days. Under these terms, the simultaneous application of
the two requirements is not an impossibility, considering especially that the Justice
Committee has control over the impeachment proceedings and can make adjustments as
it sees fit to ensure compliance with the required 60-session-day period.

Under the given facts of the present case, the House of Representatives had ample time
to pass and publish its rules on impeachment soon after it convened, given particularly
that its action was merely to adopt the Rules of Impeachment of the 14th Congress.
However, it chose not to undertake any immediate publication. The House of
Representatives, too, could have provided in its adopted Rules of Impeachment for an
effectivity period of less than the 15 days that Article 2 of the Civil Code generally
provides, as provided by this Article itself. This was not also done; thus, a tight time
situation resulted for the Justice Committee.
This tight timeline, however, is not an argument or justification to defeat the publication
requirement as this requirement cannot be defeated by the negligence or inaction of a
party burdened with the duty to publish. A saving grace in this case is that the full 60-
session-day period has not lapsed counting from the time the impeachment complaints
were referred to the Justice Committee.

d. Consequence of Failure to Publish

In light of the House of Representatives' initial failure to publish its impeachment rules,
all the proceedings prior to the effectivity of the subsequently-published rules must
necessarily be void for violation of due process. This is a conclusion the Court cannot
shy away from; it must, as a duty, declare the nullity of laws, rules and regulations
affecting individual rights that are not published. This is not the first time, in fact, that
this Court will so act; jurisprudential history is replete with instances of laws, rules and
regulations that the Court has voided for lack of the required publication.[39] As the
present case stands, no discernable reason exists not to apply the fundamental rule on
publication.

For clarity, nullity applies to all the proceedings so far taken before the Justice
Committee. These are the hearing on the sufficiency of form and the vote thereon taken
on September 1, 2010, and the hearing on the sufficiency of the substance and the vote
thereon taken on September 7, 2010. All other committee actions necessarily drew their
strength from these early actions and are, therefore, affected also by the lack of
publication. The invalidity does not attach to actions taken by the House of
Representatives itself - i.e., the inclusion in the Order of Business and the referral to
committees - as these are specific actions taken pursuant to the terms of the
Constitution. Given that published rules of impeachment now exist and have been
effective starting September 17, 2010, nothing should now prevent the House of
Representatives from resuming its proceedings from its last valid action - the Speaker's
referral of the impeachment complaints to the Justice Committee which can now
undertake its constitutional role on impeachment.

II. The One-Year Bar Rule

My second point of disagreement with the ponencia is on the interpretation of Section

3(5), Article XI of the Constitution (the one-year bar rule) which states that:

No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.
As explained by Mr. Justice Adolfo S. Azcuna in his Concurring Opinion in Francisco,[40]
"the purpose of this provision is two-fold: to prevent undue or too frequent harassment;
and to allow the legislature to do its principal task of legislation." I highlight these
purposes as I believe that they should drive our interpretation of the above-quoted
Section 3(5), Article XI of the Constitution.

a. The Contending Positions

The petitioner argues that the filing alone of an impeachment complaint initiates an
impeachment proceeding and the referral of the complaint is already the "initial action"
taken by the House of Representatives. Hence, no other impeachment complaint can be
filed within a year counted after the filing of the first impeachment complaint.

The private respondents - the proponents of the second impeachment complaint (Reyes
group) - argue that the petitioner may invoke the one-year bar only after a referral to the
committee (in accordance with Francisco), or at some point between the conclusion of
the committee report and the transmittal of the Articles of Impeachment to the Senate.

The Office of the Solicitor General (OSG), for its part, specifically posits that an
impeachment proceeding is initiated only when the House of Representatives disposes
the impeachment complaint "by the vote of at least one-third of all the members of the
House,"[41] i.e., through a disposition against the impeachable officer.[42] The OSG and
the Reyes group commonly ask, however, for a reexamination of Francisco[43] on the
ground that its interpretation of Section 3(5), Article XI of the Constitution has rendered
the impeachment mechanism "virtually, if not completely, ineffectual"[44] since it allows
public officials to escape constitutional accountability by simply obtaining the filing of a
frivolous impeachment complaint to preempt the filing of a meritorious one.[45]

The ponencia declined to adopt either position and applied the Francisco[46] ruling that
the filing and the referral of the impeachment complaint to the proper committee
"initiated" the impeachment proceedings and triggered the operation of the one-year bar
rule.

I disagree with these positions. Nevertheless, as the OSG did and as the Reyes group
reflected in their positions, I believe that our ruling in Francisco[47] must be re-
examined, particularly its interpretation of what the constitutional proscription against
the initiation of more than one impeachment complaint within a year covers.

b. The Facts of Francisco

Francisco[48] is inevitably the starting point of discussion of the one-year bar rule, if only
because this case definitively ruled on the interpretation of the word "initiate" which this
Court determined with finality to be the acts of filing and referral of the impeachment
complaint to the proper House committee. In Francisco,[49] the following facts
transpired:

On June 2, 2003, President Estrada filed an impeachment complaint (the first complaint)
against Chief Justice Davide and seven other associate justices.

On August 5, 2003, the first complaint was referred to the Justice Committee.

On October 13, 2003, the Justice Committee ruled that the first complaint was "sufficient
in form," but voted to dismiss it on October 22, 2003 for being insufficient in substance.
The Committee Report, however, was never submitted to the House of Representatives
in accordance with Section 3(2), Article XI of the Constitution.

On October 23, 2003, Reps. Gilbert C. Teodoro and Felix William B. Fuentebella filed with
the Secretary General a second impeachment complaint, which was accompanied by a
"Resolution of Endorsement/Impeachment" signed by at least 1/3 of all the Members of
the House of Representatives. This was followed by a deluge of petitions filed before the
Court seeking to restrain the House of Representatives from further acting on the second
complaint or for the Court to dismiss those petitions mainly on the ground that the Court
has no jurisdiction.

Notably, under these facts, at the time the second impeachment complaint was filed,
several acts in the impeachment process had already been completed - i.e., the first
complaint had been filed and referred to the proper committee; the complaint had been
determined to be sufficient in form but was also found to be insufficient in substance. At
that point, the Justice Committee only had to submit its report to the House of
Representatives, but this was never undertaken. Before any report could be submitted,
a second impeachment complaint was filed. Thus, the issue of whether the second
impeachment case was barred under Section 3(5), Article XI, arose.

The first complaint's insufficiency in substance notwithstanding, the Court held (as
echoed by the present ponencia) that an impeachment proceeding had already been
initiated "by the act of filing of the complaint and its referral to the Committee on
Justice,"[50] adopting the view of amici curiae Constitutional Commissioners Florenz
Regalado and Father Joaquin G. Bernas that the word "initiate" as used in Section 3(5),
Article XI of the Constitution, means to file, both adding, however, that "the filing must
be accompanied by an action to set the complaint moving." This ruling was primarily
directed against the position that the vote of one-third of the House of Representatives in
a resolution of impeachment will initiate the impeachment proceedings.[51]

c. Refutation of the Petitioner's Position

The petitioner's position - that the mere filing of an impeachment complaint should serve
as a complete trigger for the one-year bar rule - is a repetition of the view that the Court
rejected in Francisco.[52] The petitioner obviously equated a "verified complaint for
impeachment" that may be filed under Section 3(2) of Article XI, to the "impeachment
proceedings" that may not be "initiated" against the same official more than once within
a year under Section 3(5) of the same article. As in Francisco,[53] the ponencia favorably
considers the reasoning of Father Bernas that a "proceeding" before the House of
Representatives (as distinguished from a "case" which is the "legal controversy that must
be decided by the Senate) is progressive in character, having a beginning, a middle and
an end. An impeachment "proceeding" begins when a verified complaint is filed and
referred to the proper Committee;[54] the filing of an impeachment complaint sets off
the initial phase of the impeachment proceeding, this phase is not completed and the
impeachment proceeding is not fully "initiated" until the House of Representatives itself
initially acts on the impeachment complaint.

I completely agree with the ponencia that the petitioner's position should be rejected.
Aside from the reasoning based on the deliberations of the Constitutional Commission,
the petitioner's restrictive view unduly limits the people's right to file impeachment
complaints, at the same time that it ties the hands of the House of Representatives - the
body constitutionally answerable to the electorate - by effectively placing the power of
impeachment in the hands of random complainants whose acts can preclude or suspend
the filing of other impeachment complaints for at least a year.

Thus, it is only proper that the act of initiating the impeachment process should go
beyond the act of mere filing and should extend to initial action by the receiving entity
on the complaint to fully signify that an impeachment proceeding has been "initiated." To
what acts the initiation phase shall extend is a point of disagreement with the ponencia
and is fully discussed at the appropriate topic below.

d. The OSG Position

At the other end (in fact, the back-end) of how an impeachment proceeding is "initiated"
for purposes of the one-year bar rule is the OSG's position that the back-end is signaled
by the favorable vote of a third of the House of Representatives on the intrinsic merits of
the impeachment complaint. This view disagrees with the ponencia that the referral by
the House of Representatives of the complaint to the proper committee completes the
initiation phase of the impeachment process.

Independently of the reasons propounded in Francisco,[55] I reject this submission for

two reasons.

First, to "impeach" simply means "to formally charge with a violation of the public
trust"[56] or "to bring an accusation against."[57] The power of impeachment is lodged
with the House and not with the Senate; the power of the Senate is to "try and decide an
impeachment case." Once one-third of the House of Representatives membership votes
in favor of impeachment, the public official is effectively impeached - i.e., indicted of an
impeachable offense. At this point, the impeachment proceedings before the House of
Representatives (again contrasted with the totality of the impeachment "case") already
terminates; and an entirely different proceeding begins - i.e., the trial of the
impeachment case at the Senate.

Second, the OSG's interpretation disregards the purposes of the one-year bar to the
point of defeating these purposes. If we pursue the argument to its logical conclusion, as
long as the one-third vote required to "impeach" has not been obtained, then the House
of Representatives and the Justice Committee can continuously receive and entertain
impeachment complaints; only a favorable House of Representatives vote (effectively,
the endorsement of the Articles of Impeachment to the Senate) can serve as a bar to
another impeachment complaint within one year. This position, to be sure, is a
prescription for the successive filing of impeachment complaints and "hearings" held one
after another, terminated only by the successful consideration by the House of
Representatives of one of the filed complaints. The possibility of multiple impeachment
complaints is exemplified, not only in the present case, but in the records of previous
impeachment complaints before the House of Representatives under the present
Constitution.

I do not believe that this impeachment scenario is what the Constitution intended when
it provided for the one-year bar rule; the operation of this scenario cannot but have the
effect of causing undue delay and prejudice to legislative work. To state the obvious,
undue harassment of the impeachable official shall also result, again to the prejudice of
public service. All these run counter to the purposes of Section 3(5), Article XI of the
Constitution.

e. Revisiting Francisco

All the above having been said, the ponencia's conclusion of strictly adhering to the
Francisco[58] ruling leaves much to be desired as the ruling still leaves open the more
specific question of what completes the initiation process in light of the established
purposes of the one-year bar rule.

An examination of Francisco shows that it extensively discussed the constitutional

meaning of "initiation" in Article XI by relying heavily on the records of the Constitutional
Commission.[59] Yet, it was eerily silent on the purposes behind Section 3(5) which was
the provision directly in issue.

Basic in construing a constitution is the ascertainment of the intent or purpose of the

framers in framing the provision under consideration. This should include, aside from the
reason which induced the framers to enact the particular provision, the particular
purpose/s intended to be accomplished and the evils, if any, sought to be prevented or
remedied. Constitutional interpretation must consider the whole instrument and its
various parts in a manner that would align the understanding of the words of the
Constitution with the identified underlying intents and purposes.[60]

Aside from discussing the proceedings of the Constitutional Commission in considering

the initiation aspects of an impeachment proceeding, the Court in Francisco[61] gave the
word "initiate" its ordinary meaning, i.e., "to begin, commence, or set going" in
accordance with the principle of verba legis. Thus, the word "initiate" in Section 3(1),
Article XI of the Constitution was read to mean to commence a "case" that the Senate
shall consider after the transmittal of the Articles of Impeachment on the one-third vote
of all the members of the House of Representatives affirming the favorable resolution of
the Justice Committee or overriding it.

The majority in Francisco,[62] however, never discussed the meaning of "initiate" for
purposes of the one-year bar based on the proceedings of the Constitutional
Commission. Only the Concurring Opinion of Mr. Justice Adolfo Azcuna referred to the
purposes of Section 3(5), Article XI of the Constitution, as reflected in the Constitutional
Commission deliberations. He quoted the proceedings as follows:[63]

MR. VILLACORTA. Madam President, I would just like to ask the Committee three
questions.

On Section 3, page 2, lines 12 to 14, the last paragraph reads as follows: "No
impeachment proceedings shall be initiated against the same official more than once
within a period of one year." Does this mean that even if an evidence is discovered to
support another charge or ground for impeachment, a second or subsequent proceeding
cannot be initiated against the same official within a period of one year? In other words,
one year has to elapse before a second or subsequent charge or proceeding can be
initiated. The intention may be to protect the public official from undue harassment. On
the other hand, is this not undue limitation on the accountability of public officers?
Anyway, when a person accepts a public trust, does he not consider taking the risk of
accounting for his acts or misfeasance in office?

MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public
officials who, in this case, are of the highest category from harassment but also to allow
the legislative body to do its work which is lawmaking. Impeachment proceedings take a
lot of time. And if we allow multiple impeachment charges on the same individual to take
place, the legislature will do nothing else but that.[64] (Emphases supplied).

Without doubt, the silence of Francisco[65] (and of the present ponencia) on the
purposes of Section 3(5), Article XI of the Constitution contributes in no small measure to
the clamor for a revisit to Francisco[66] since it did not address the intent of the one-year
bar rule, yet laid down a doctrine on the provision that this intent produced.

e.1. An Alternative View of Francisco

e.1.i. The Back-End of the Initiation Process

I agree with the conclusion of Francisco[67] on when an impeachment proceeding starts.

Indeed, the initiation phase of the proceeding cannot start at any point other than the
filing of the impeachment complaint. I cannot but agree, too, that the initiation phase is
not confined solely to the fact of filing; the House of Representatives as the receiving
entity has to intervene for a complete and meaningful initiation process. But beyond
these, the question arises - up to what point does the initiation phase of the
impeachment proceedings end considering the totality of Section 3, Article XI of the
Constitution?

This question must inevitably arise since the presented reasons - either from the amici
curiae or the deliberations of the Constitutional Commission on Section 3(1) and Section
3(3), Article XI of the Constitution - do not present ready answers. For one, the term
"initiate" under Section 3(1) does not carry the same sense as the term "initiated" in
Section 3(5); the first refers to the power of the House of Representatives to impeach as
against the power of the Senate to try an impeachment case brought forward by the
House of Representatives, while Section 3(5) specifically refers to the internal
proceedings of the House of Representatives.

I submit on this point - i.e., on the outer limit or back end of the initiation phase of the
impeachment proceedings - that the intent and purpose behind Section 3(5), Article XI of
the Constitution must necessarily come into play. The complete interpretation of the
Section must consider the point beyond which another impeachment complaint shall
constitute undue harassment against the impeachable official, as well as the point that
should serve as a cut-off to ensure that the House of Representatives is not unduly taken
away from its mandated lawmaking activities.

For a bird's eye view of the impeachment process at the House of Representatives, the
proceedings run as follows:

A Member of the House files or endorses a verified impeachment complaint;

The verified complaint is included in the Order of Business of the House of

Representatives;
The House of Representatives refers the verified complaint to the proper committee;

The committee determines the sufficiency in form and substance of the verified
complaint and submits its recommendations to the House of Representatives.[68]

If the Committee determines that the complaint is insufficient in form, it shall return the
complaint to the Secretary General with a written explanation of the insufficiency.

If the Committee finds the complaint insufficient in substance, it shall dismiss the
complaint and make the proper report to the House of Representatives in plenary. (If the
House of Representatives disapproves the finding of insufficiency, thus effectively
deciding that the impeachment complaint is sufficient, then it returns the complaint to
the Committee for the proceedings described below.)

After a finding of sufficiency, the committee proceeds to require the respondent to

answer and to hear the merits of the complaint.

If the committee finds that the complaint lacks merit, it shall submit to the House of
Representatives a resolution of dismissal. A vote of 1/3 of the House of Representatives
overrides the resolution, in which case the committee shall prepare the Articles of
Impeachment.

The House of Representatives in plenary considers the committee's favorable

recommendation expressed through a resolution setting forth the Articles of
Impeachment. By a vote of at least 1/3 of the House of Representatives, the Articles of
Impeachment shall be endorsed to the Senate for trial.

If the 1/3 vote on the resolution on the Articles of Impeachment is not attained, then the
complaint is dismissed and the impeachment proceedings end.

e.1.ii. The Ponencia's Deficiencies

The ponencia demarcates the referral by the House of Representatives of the

impeachment complaint to the proper committee as the outer or back end limit of the
initiation phase apparently because referral is the initial action of the House of
Representatives action on the matter. The appropriate point, however, cannot be based
solely on the first overt action the House of Representatives takes, if the purposes of the
"initiation" of the impeachment complaint are to be respected. Specifically, the purpose
and intent of Section 3(5), Article XI of the Constitution, as gleaned from the word
"initiated" and the one-year bar rule, must be considered. I believe that on this point,
the ponencia made an incomplete consideration that should be corrected.

e.1.iii. The One-Year Bar Rule and Its Purposes

The one-year bar rule and its purposes and effects, once considered, unavoidably
introduce into the word "initiate" the idea of knowing and meaningful action sufficient to
have the effect of preventing the filing of another impeachment complaint within one
year. The import of what the bar signifies can be gleaned from the importance the
Constitution gives public accountability and the impeachment process; public
accountability is a primary constitutional interest that merits no less than one complete
and separate Article in the Constitution, while impeachment is one of the defined means
of holding the highest government officials accountable. They are prominent, not only in
the Constitution, but in the public mind as well.

In this light, the bar against impeachment that Section 3(5), Article XI of the Constitution
speaks of cannot simply be confined to the mechanical act of filing an impeachment
complaint. As every citizen enjoys the right to file a complaint, a bar triggered by the
mere physical act of filing one complaint is practically a negation of the granted right
without a meaningful basis. Thus, the initiation of an impeachment complaint,
understood in the sense used in Section 3(5), Article XI of the Constitution, must involve
a process that goes beyond this physical act of filing; initiation must be a participatory
act that involves the receiving entity, in this case, the House of Representatives.

To be consistent with the nature and effects of the bar, the participation of the House of
Representatives in the initiation phase must itself be meaningful; it must be an act
characterized by the exercise of discretion in determining that the filed impeachment
complaint is valid and can be the basis for the impeachment proceedings to follow,
subject to supporting and duly admitted evidence. To state the obvious, only a valid
impeachment complaint should serve as a bar; otherwise, no meaningful balance would
exist between the impeachment and the bar that can frustrate it.

The receipt by the House of Representatives of the filed impeachment complaint, like the
filing of the complaint, involves a mechanical act that leaves the House be the basis for
the impeachment proceedings to follow with no discretion to exercise; a filed complaint
must be received as the filing of the complaint is in the exercise of a right granted by the
Constitution. In like manner, the initial overt action by the House of Representatives -
the referral of the impeachment complaint to the appropriate committee - is no different
from the prior act of receiving the complaint. It is essentially a mandatory act that the
Constitution commands. In fact, the act of receiving an impeachment complaint cannot
really be divorced from the act of referral since both acts are products of constitutional
directives couched in the mandatory language of Section 3(2), Article XI of the
Constitution.

The next action following the referral of the impeachment complaint to the Justice
Committee is the latter's consideration of the complaint for sufficiency in form and
substance. The determination of sufficiency is essentially a test for validity and is the
first opportunity for a meaningful action, involving the exercise of discretion, that would
justify the imposition of a bar. It is at this level, with the complaint declared as valid,
that impeachment proceedings can be fully recognized to be validly initiated.

From this perspective, the Francisco[69] ruling - while essentially referring to aspects of
the initiation phase of the impeachment proceedings - does not fully cover its complete
initiation phase. The act of referral that passed Francisco's[70] approval is a purely
mechanical act that does not consider the validity of the complaint and the exercise of
discretion in the determination of its validity as essential elements. At the core,
Francisco[71] is incomplete because it did not consider the purposes of Section 3(5),
Article XI of the Constitution.

e.1.iv. The Undue Harassment Purpose

From the perspective of the purposes of the one-year bar rule, it should be noted that up
to the point of the referral by the House of Representatives, nothing is expected to be
done by the public official against whom the complaint is filed. In fact, both the
Constitution and the impeachment rules do not require that the complainant furnish the
official sought to be impeached a copy of the verified impeachment complaint. Only
after the Justice Committee finds the complaint sufficient in form and substance that the
respondent official is formally furnished a copy of the verified complaint.

It should be considered, too, that the mere filing of an impeachment complaint is not per
se an act of harassment. The filing of an impeachment complaint is a remedy that the
Constitution itself provides and defines. The concept of harassment only enters the
picture in any subsequent complaint filed; the Constitution itself bars a second complaint
within a year from the initiation of the first complaint on the presumption that the second
complaint only serves to harass an impeachable officer.

Since "undue harassment" is practically a legal reason or justification for the one-year
bar rule, it can only be understood in terms of the legal effects that the filing of an
impeachment complaint carries with it. As against the impeachable official against whom
a complaint is filed, legal effects start only from the time a valid complaint is recognized.
The mere referral of a complaint by the House of Representatives to the proper
committee does not in any way legally affect the public official against whom a
complaint is filed; at this point, he/she is only a passive participant in the proceedings - a
person named in a complaint that may not even prosper. Legal effect takes place only
when the complaint is found valid for sufficiency in form and substance, and the public
official is formally furnished a copy and is required to answer. At this point - i.e., when
the House of Representatives, through its appropriate committee, has exercised its
discretion in taking concrete action against an impeachable public official - a valid
complaint can be said to have been formally recognized by and fully "initiated" in the
House of Representatives.

It is at this point, too, that the constitutional intent of preventing undue harassment of
an impeachable officer is triggered. Beyond this point, a second impeachment
complaint, whether valid or invalid, becomes too many for an impeachable official to
face within a year.

e.1.v. Interference in Lawmaking

From the perspective of interference in the House of Representatives proceedings, note

that the determination of sufficiency of the verified complaint in form and substance
requires committee action but not any hearing where the respondent official must be
present as a matter of due process. Sufficiency in form only requires a facial
consideration of the complaint based on the mandated formal requirements.

The Constitution requires the bare minimum of verification of the complaint, and the
allegation that it is filed by a Member of the House of Representatives or the
endorsement by a Member if the complaint is filed by a citizen. Additionally, following
the Rules of Criminal Procedure of the Rules of Court[72] that applies as suppletory rules,
the form should be appropriate if a proper respondent, occupying an office subject to
impeachment, is named in the complaint, and if specific acts or omissions are charged
under one of the grounds for impeachment defined by the Constitution.

The complaint should be considered sufficient in substance if the acts or omissions

charged are appropriate under the cited grounds and can serve as basis to hear and to
bring the Articles of Impeachment forward to the Senate. It is at this point that the
Justice Committee can determine, as a matter of substance, if the impeachment
complaint is one that - because of its validity - can serve as a bar to a second complaint
within a one-year period.

Notably, all these would only require the examination of the verified complaint and
whatever component annexes it may contain, without need for any formal hearing or any
explanation from the respondent whose opportunity to explain and dispute the case
against him/her only comes after an Answer. It is at this hearing before the Justice
Committee that the determination of "probable cause" transpires.
Incidentally, the Constitution expressly requires that there be a hearing before the Justice
Committee submits its resolution on the Articles of Impeachment. Notably, too, the
Constitution requires a hearing only at this point, not at any other stage, particularly at
the determination of the sufficiency in form and substance stage, although no law
prohibits the Justice Committee from calling the parties to a "sufficiency" hearing.

Up until the determination of the validity of the complaint in form and substance, all of
which are internal to the Justice Committee, interference on the lawmaking part of the
House of Representatives can be seen to be negligible. The records of the present
Justice Committee themselves show that it devoted only two meetings to determine the
sufficiency of the complaint in form and substance.

Thus, from the point of view of both possible undue harassment effects and interference
in the lawmaking activities of the House of Representatives, no justification on these
grounds exists to restrict the back-end or outside limit of the initiation phase of the
impeachment proceedings to the referral of the verified complaint to the Justice
Committee. In fact, the nature of a referral as a mandatory and non-discretionary action
of the House of Representatives dictates that the initiation phase be extended beyond
this point. The appropriate point that serves both the "undue harassment" and
"interference in lawmaking" purposes of Section 3(5), Article XI of the Constitution is
when the impeachment complaint is determined to be valid. Beyond that point, the
possibilities of undue harassment and interference in lawmaking become real.

e.1.vi. From Prism of Experience and Practical Application

Admittedly, the alternative view dictates a result different from the result the Court
arrived at under the facts of Francisco;[73] with the dismissal of the first impeachment
complaint for insufficiency in substance, no complaint stood to trigger the one-year bar
rule so that the second complaint should have been recognized. But this consequence
should not deter the Court from reconsidering its position; experience in impeachment
cases from the time of Francisco[74] has shown that this ruling has not served the
overall purposes of impeachment at all.

As the OSG argued, the Francisco ruling can indeed encourage naughty effects; a
meritorious impeachment case can effectively be barred by the filing of a prior
unmeritorious impeachment complaint whose mere referral to the Justice Committee
already bars the recognition of the meritorious complaint. Its disregard of the purposes
of Section 3(5), Article XI of the Constitution leaves the impeachment process highly
susceptible to manipulation. In contrast, this naughty effect can be minimized with the
adoption of the alternative view that fully takes the purposes of Section 3(5), Article XI of
the Constitution into account, as the alternative:

recognizes that the referral is a mandatory non-discretionary act on the part of the
Speaker or the leadership of the House of Representatives; all complaints must be
referred to the Justice Committee for its action and recommendation; and

recognizes that the Constitution grants the Justice Committee the initial discretionary
authority to act on all matters of form and substance of impeachment complaints,
including the finding and recommendation that a second complaint is barred by the one-
year bar rule.

To be sure, an unmeritorious complaint can still be filed ahead of time under the
alternative view and be recognized as sufficient in form and substance by the Justice
Committee in order to bar an expected meritorious complaint. This is a political
dimension of the impeachment process that neither this Court nor the public can directly
remedy under the terms of the present Constitution. The alternative view, however,
would prevent the unilateral refusal at the level of the Speaker or leadership of the
House of Representatives to refer the complaint to the Justice Committee on the ground
of the one-year bar rule. Once a second complaint is referred, the Justice Committee - as
the body granted by the Constitution with the initial authority and duty to rule - would
then have to rule on the applicability of a bar and, subsequently, report this out to the
plenary for its consideration. At both levels, debates can take place that can effectively
bring the matter of public opinion to the bar where the political act of the House of
Representatives can properly be adjudged.

The ponencia, incidentally, posits that:

Referral of the complaint to the proper committee is not done by the House Speaker
alone xxx. It is the House of Representatives, in public plenary session, which has the
power to set its own chamber into special operation by referring the complaint or to
otherwise guard against the initiation of a second impeachment proceeding xxx.

x x x. With respect to complaints for impeachment, the House has the discretion not to
refer a subsequent impeachment complaint to the Committee on Justice where official
records and further debate show that an impeachment complaint filed against the same
impeachable officer has already been referred to the said committee and the one year
period has not yet expired xxx. Far from being mechanical, before the referral stage, a
period of deliberation is afforded the House[.]

The ponencia added:

Allowing an expansive construction of the term "initiate" beyond the act of referral allows
the unmitigated influx of successive complaints... Worse, the Committee shall conduct
overlapping hearings until and unless the disposition of one of the complaints ends with
the affirmance of a resolution for impeachment.... or the Committee on Justice concludes
its first report to the House plenary regardless of the recommendation... Each of these
scenarios runs roughshod the very purpose behind the constitutionally imposed one-year
bar. (Underlining supplied).

With all due respect and as discussed above, these statements disregard the clear
wording of the Constitution and the purposes of the one-year bar rule.

First, the constitutional directive to refer an impeachment complaint to the Committee is

clear and unequivocal; it does not set terms or procedures and provides only for a
period. Also, the House of Representatives itself does not appear - from the terms of
Section 3, Article XI of the Constitution - to have the authority at the first instance to
undertake any direct action on subsequently-filed impeachment complaints other than to
refer them to the proper committee. The House of Representatives, therefore, must refer
a filed impeachment complaint to the Justice Committee within the mandated period.
Any attempt to read into the Constitution any procedure other than what it clearly
provides is to introduce further complications into the impeachment process, and is an
intervention inconsistent with the terms of the Constitution.

Second, the question that the ponencia has not even ventured to answer is when an
impeachment proceeding is initiated in light of the purposes of the one-year bar. As
pointed out above, until the Justice Committee finds the impeachment complaint or
complaints sufficient in form and substance, no "hearing" is required under the terms of
the Constitution and it is pointless to claim that overlapping hearings will take place. The
Justice Committee acts as the constitutional sentry through its power to determine the
validity of the complaints' form and substance; the judicious exercise of this power is
enough to avoid the feared "overlapping hearings." Any subsequent complaint filed while
an impeachment proceeding, based on a valid impeachment complaint, is in progress, or
within a year from the declaration of the validity of an impeachment complaint's form
and substance, can only be dismissed for insufficiency of substance as the consideration
of its substance is barred by the one-year bar rule.
It is in the same light that I find it difficult to fully appreciate the ponencia's analogy - i.e.,
the referral of the impeachment complaint is like the burning of the candle wick that
ignites, that is, initiates impeachment proceedings. Using the same analogy, lighting a
candle unless done deliberately, i.e., with the purpose of lighting the candle in mind,
would be no better that a candle lit in the winds' way. The purposes of Section 3(5),
Article XI of the Constitution must be considered in determining when the initiation
phase of impeachment proceedings ends; otherwise, a manipulation of the process can
intervene, putting the impeachment process to naught.

III. SUMMARY

To summarize:

a. The House of Representatives properly referred the impeachment complaints filed

against the petitioner to the pursuant to the express terms of Section 3(2), Article XI of
the Constitution. Accordingly, the referral is valid.

b. The proceedings were undertaken without the benefit of fully effective rules on
impeachment as required by Section 3(8), Article XI of the Constitution, in relation to
Article 2 of the Civil Code. These proceedings violated the petitioner's right to due
process and, hence, are invalid.

c. In light of the Rules of Procedure in Impeachment Proceedings of the Fifteenth

Congress, promulgated on September 2, 2010 and which became effective on
September 17, 2010, no legal stumbling block now exists to prevent the from taking
cognizance of the referred complaints and from undertaking its constitutional role under
Section 3, Article XI of the Constitution.

d. The initiation phase of impeachment proceedings starts with the filing of the verified
impeachment complaint by any Member of the House of Representatives or by any
citizen upon resolution of an endorsement by any member of the House of
Representatives. The initiation phase ends when the Justice Committee determines and
the House of Representatives approves the sufficiency of the impeachment complaint in
form and substance.

e. The finding of the validity of the impeachment complaint in form and substance
completes the initiation phase of the impeachment proceedings and bars the filing of
another impeachment complaint for a period of one year therefrom.

f. Any question posed by the filing of separate complaints by two separate parties in the
present case is a matter for the Justice Committee and, ultimately, for the House of
Representatives, to resolve under the terms of the Constitution and its Rules on
Impeachment. In light of the invalidity of the proceedings of the Justice Committee, there
is no concrete action that this Court can act upon; the matter, at this point, is not yet
ripe for adjudication.

On the basis of the foregoing, I vote to GRANT the petition.

--------------------------------------------------------------------------------
[1] 460 Phil 830 (2003).

[2] Section 2, Article XI of the Constitution.

[3] Section 3(2), Article XI of the Constitution.

[4] Section 3(3), (4) and (6), Article XI of the Constitution.

[5] Section 3(5), Article XI of the Constitution.

[6] Section 3(8), Article XI of the Constitution.

[7] Article III of the Constitution.

[8] IBP v. Zamora, G.R. No. 141284, August 5, 2000, 338 SCRA 81.

[9] Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA
251, 271.

[10] Black's Law Dictionary, 5th edition.

[11] Republic v. Express Telecommunications Co., Inc., 424 Phil 372, 393 (2002); and
Pilipinas Kao, Inc. v. Court of Appeals, 423 Phil. 834, 859 (2001). Article 2 of the Civil
Code reads:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall take
effect one year after such publication.

[12] Philippine International Trading Corporation v. Commission on Audit, 368 Phil. 478,
491 (1999).

[13] See Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834 and
171246, April 20, 2006, 488 SCRA 1, 72.

[14] 230 Phil. 528, 534-535 (1986).

[15] Id.

[16] Ponencia, p. 19.

[17] Memorandum of the House of Representatives Committee on Justice dated October

26, 2010, pp. 6-7; and Memorandum of petitioner dated October 21, 2010, pp. 4-7. The
two complaints were filed on July 22, 2010 and on August 3, 2010.

[18] Memorandum of the House of Representatives Committee on Justice dated October

26, 2010, p.7; and Memorandum of petitioner dated October 21, 2010, p. 8. Both
complaints were referred to the Justice Committee on August 11, 2010.

[19] Memorandum of the House of Representatives Committee on Justice dated October

26, 2010, pp.7-8; and Memorandum of petitioner dated October 21, 2010, pp. 8-16. On
September 1, 2010, the Justice Committee conducted a hearing on the sufficiency in
form of both complaints. On September 7, 2010, the Justice Committee conducted a
hearing on the sufficiency in substance of both complaints.

[20] Ponencia, p. 21.

[21] Republic v. Pilipinas Shell Petroleum Corporation, G.R. No. 173918, April 8, 2008,
550 SCRA 680, 693.

[22] G.R. No. 163935, February 2, 2006, 481 SCRA 480, 521.

[23] Id.

[24] Padilla and Phoenix-Omega Development and Management Corp. v. Court of

Appeals and Susana Realty, Inc., G.R. No. 123893, November 22, 2001, 370 SCRA 218;
and National Housing Authority v. Jose Evangelista, G.R. No. 140945, May 16, 2005, 458
SCRA 478-479.
[25] Supra note 22.

[26] Id. at 518 and 522. The term "promulgation" was used alternately in reference to
orders and rules.

[27] Ponencia, p. 17. It is Section 4(6), not Section 3, Article VII of the Constitution that
refers to the promulgation of canvassing rules.

[28] Id. at 18.

[29] Supra note 1.

[30] Urbano v. Government Service Insurance System, 419 Phil. 948, 969 (2001); and
Corona v. Court of Appeals, G.R. No. 97356, September 10, 1992, 214 SCRA 378, 392,
citing Ruben Agpalo, Statutory Construction.

[31] Ponencia, p. 18.

[32] G. R. No. 180643, September 4, 2008, 564 SCRA 152, 230.

[33] Taada v. Tuvera, supra note 14.

[34] Supra note 32.

[35] Republic v. Pilipinas Shell Petroleum, supra note 21.

[36] Philippine International Trading Corporation v. Commission on Audit, supra note 12.

[37] Section 3(2), Article XI of the Constitution.

[38] See Mecano v. Commission on Audit, G.R. No. 103982, December 11, 1992, 216
SCRA 506; Republic v. Asuncion, G.R. No. l-108208, March 11, 1994, 231 SCRA 230-232;
Secretary of Finance v. Ilarde, G.R. No. 121782, May 9, 2005, 450 SCRA 233; and Hagad
v. Gozo-Dadole, G.R. No. 108072, December 12, 1995, 251 SCRA 251-252.

[39] Securities and Exchange Commission, G.R. No. 164026, December 23, 2008, 575
SCRA 113, 121-123; Republic v. Pilipinas Shell Petroleum Corporation, supra note 21, at
689-694; Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834, and
171246, supra note 13, at 71-72; Pilipinas Kao, Inc. v. Court of Appeals, supra note 11, at
860-861; Philsa International Placement and Services Corp. v. Secretary of Labor and
Employment, 408 Phil. 270, 290 (2001); and Philippine International Trading Corporation
v. Commission on Audit, supra note 12.

[40] Supra note 1.

[41] Memorandum of the House of Representatives Committee on Justice, pp. 78 and 80.

[42] This is a step further than the interpretation of the House of Representatives of the
12th Congress of Article XI, Section 3(5) in Francisco. The Rules on Impeachment of the
12th Congress provides that an impeachment proceeding is deemed initiated, among
others, on the date the House of Representatives votes to overturn or affirm the findings
of the Justice Committee that the verified impeachment complaint is not sufficient in
substance. Simply, the House of Representatives' disposition of the impeachment
complaint need not be against the impeachable officer to "initiate" an impeachment
proceeding.

[43] Supra note 1.

[44] Memorandum of respondents Reyes et al., pp. 30-31.

[45] Memorandum of The House of Representatives Committee on Justice, pp. 80-83.

[46] Supra note 1.

[47] Supra note 1.

[48] Ibid.

[49] Ibid.

[50] Id. at 169-170.

In Francisco, the Court stated that for Commissioner Regalado, the sponsor of Section
3(5), Article XI, "initiate" means "to file" adding that the act of initiating "included the act
of taking initial action on the complaint."

Father Bernas' argument goes:

Briefly then, an impeachment proceeding is not a single act. It is a complexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The beginning or the initiation
is the filing of the complaint and its referral to the Committee on Justice.

[51] Id. at 164.

[52] Id.

[53] Ibid.

[54] Id. at 169.

[55] Id.

[56] Black's Law Dictionary, 8th ed.

[57] Webster's Third New International Dictionary.

[58] Supra note 1.

[59] I entertain doubts on the completeness of Francisco's arguments in construing the

word "initiate"(which the ponencia effectively adopted) in so far as they rely on
Commissioner Maambong's observations. The Commissioner's remark on the need to be
"very technical" on the word "initiation" obviously referred to Section 3(3) of Article XI
where the word "initiate" no longer appears, but was read in relation to Section 3(1). The
word "initiate" in Section 3(1), however, is used in a different sense, that is, to bring an
impeachable officer to impeachment trial in the Senate. The word "initiate" in Section
3(1) is expressly used in the Constitution as a "power" - and not with reference to
procedure. The same word as used in Section 3(5) was understood in Francisco to mean
the "filing and referral to the Justice Committee" for action, which essentially refers to
procedure. In this consideration of Section 3(5), its purposes were not taken into
account.

[60] See Civil Liberties v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194
SCRA 317.

[61] Supra note 1.

[62] Ibid.

[63] Id. at 1053

[64] 2 Record of the Constitutional Commission, p. 282; see also Separate Opinion of
Justice Azcuna in Francisco v. House of Representatives, id. at 313.

[65] Supra note 1.

[66] Ibid.

[67] Ibid.

[68] A. COMMITTEE PROCEEDINGS

Section 4. Determination of Sufficiency in Form and Substance. - Upon due referral, the
Committee on Justice shall determine whether the complaint is sufficient in form and
substance. If the committee finds that the complaint is insufficient in form, it shall return
the same to the Secretary General within three (3) session days with a written
explanation of the insufficiency. The Secretary General shall return the same to the
complainant(s) together with the committee's written explanation within three (3)
session days from receipt of the committee resolution finding the complaint insufficient
in form.

Should the committee find the complaint sufficient in form, it shall then determine if the
complaint is sufficient in substance. The requirement of substance is met if there is a
recital of facts constituting the offense charged and determinative of the jurisdiction of
the committee. If the committee finds that the complaint is not sufficient in substance, it
shall dismiss the complaint and shall submit its report as provided hereunder.

Section 5. Notice to Respondents and Time to Plead. - If the committee finds the
complaint sufficient in form and substance, it shall immediately furnish the respondent(s)
with a copy of the resolution and/or verified complaint, as the case may be, with written
notice thereof and serve a copy of the answer to the complaint(s). No motion to dismiss
shall be allowed within the period to answer the complaint.

The answer, which shall be under oath, may include affirmative defenses. If the
respondent fails or refuses to file an answer within the reglementary period, he/she is
deemed to have interposed a general denial to the complaint. Within three (3) days from
receipt of the answer, the complainant may file a reply, serving a copy thereof to the
respondent who may file a rejoinder within three (3) days from receipt of the reply,
serving a copy thereof to the complainant. If the complainant fails to file a reply, all the
material allegations in the answer are deemed controverted. Together with their
pleadings, the parties shall file their affidavits or counter-affidavits, as the case may be,
with their documentary evidence. Such affidavits or counter-affidavits shall be subscribed
before the Chairperson of the Committee on Justice or the Secretary General.
Notwithstanding all the foregoing, failure presenting evidence in support of his/her
defenses.

When there are more than one respondent, each shall be furnished with copy of the
verified complaint from a Member of the House or a copy of the verified complaint from a
private citizen together with the resolution of endorsement by a Member of the House of
Representatives and a written notice to answer and in that case, reference to respondent
in these Rules shall be understood as respondents.
[69] Supra note 1.

[70] Ibid.

[71] Ibid.

[72] Section 7, Rule 17.

[73] Supra note 1.

[74] Ibid.

--------------------------------------------------------------------------------

CONCURRING AND DISSENTING OPINION

DEL CASTILLO, J.:

The law embodies the story of a nation's development through many centuries, and it
cannot be dealt with as if it contained only the axioms and corollaries of a book of
mathematics. In order to know what it is, we must know what it has been, and what it
tends to become.

Oliver Wendell Holmes, Jr.

The Common Law, Lecture 1 (1881)

At the heart of this controversy is the interpretation of the rule enshrined in Article XI,
Sec. 3(5) of our Constitution, that "[n]o impeachment proceedings shall be initiated
against the same official more than once within a period of one year." With due respect
to my esteemed colleague, Mme. Justice Conchita Carpio Morales, I do not agree that
there may be multiple complaints embraced in only one impeachment proceeding.

Recall that Francisco, Jr. v. The House of Representatives[1] involved two impeachment
complaints filed on separate occasions, the first of which had been resolved long before
the second complaint was filed. The first complaint was filed on June 2, 2003 by former
President Joseph E. Estrada against then Chief Justice Hilario G. Davide, Jr. and Associate
Justices Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T. Carpio,
Renato C. Corona, Jose C. Vitug, and Leonardo A. Quisumbing. Upon referral to the
House Committee on Justice, the Committee ruled that the complaint was sufficient in
form, but voted for the dismissal of the complaint for being insufficient in substance.
Subsequently, a second complaint was filed on October 23, 2003 against Chief Justice
Hilario G. Davide, Jr., accompanied by the endorsement of at least one-third (1/3) of all
the Members of the House of Representatives.

The Court in Francisco faced this question: when a first impeachment complaint is filed
against an impeachable officer, subsequently referred to the House Committee on
Justice, and then dismissed, may another impeachment complaint prosper? We said
then that from the moment that the first complaint was referred to the proper
committee, the filing of a second impeachment complaint was prohibited under
paragraph 5, section 3 of Article XI of the Constitution. Though the first impeachment
complaint was found to be insufficient in substance, it still served as a bar to a
subsequent complaint within the same year.

The Court ruled that "initiation [of an impeachment proceeding] takes place by the act of
filing and referral or endorsement of the impeachment complaint to the House
Committee on Justice or, by the filing by at least one-third of the members of the House
of Representatives with the Secretary General of the House x x x"[2] Thus, "[o]nce an
impeachment complaint has been initiated, another impeachment complaint may not be
filed against the same official within a one year period."[3] It was on that basis that the
Supreme Court invalidated Sections 16 and 17 of the Rules of Procedure in Impeachment
Proceedings of the 12th Congress, and declared that the second impeachment complaint
filed against Chief Justice Davide was barred under paragraph 5, section 3 of Article XI of
the Constitution.
The rule seems simple enough, and has since been readily applied. But what of a case
where two impeachment complaints are separately filed and then simultaneously
referred to the Committee on Justice. Does it then follow that only one proceeding has
been initiated? To put it differently, is it possible to have two impeachment complaints
but just one proceeding?

Mme. Justice Carpio Morales posits that multiple complaints within one proceeding are
possible, because the purposes of the one-year ban as enunciated by the framers of our
Constitution - to prevent harassment of the impeachable officials and to allow the
legislature to focus on its principal task of legislation[4] - reveal that the consideration
behind the one-year ban is time and not the number of complaints.

Unfortunately, while we are in agreement as to the reckoning point of initiation, I cannot

find any reasonable justification for the conclusion that there can be multiple complaints
in one proceeding. I posit this view for two reasons: first, it does not appear to be
entirely accurate that both complaints were simultaneously referred to the Committee on
Justice. Second, even assuming that there was simultaneous referral, upon referral of
the First Complaint[5] to the Committee, an impeachment proceeding had already been
initiated, so as to bar any further proceedings on the Second Complaint.[6]

As regards the simultaneous referral, as shown in the Congressional records,[7] and

acknowledged by counsel for the respondents during the October 12, 2010 Oral
Arguments (interpellation of Mr. Justice Antonio Eduardo Nachura), it appears that during
the House plenary session on August 11, 2010, each complaint was read separately by
the Secretary General and individually referred to the Committee on Justice by the Chair.
[8] Thus there was, strictly speaking, no simultaneous referral.

No doubt this Court should be more concerned with overarching principles rather than
the ephemeral passing of minutes or seconds. But even if we were to assume that there
was, indeed, simultaneous referral, it would be no less true that the filing and referral of
each individual impeachment complaint amounts to the initiation of two separate
impeachment proceedings.

The word "proceeding" has been defined as "the regular and orderly progression of a
lawsuit, including all acts and events between the time of commencement and the entry
of judgment; any procedural means for seeking redress from a tribunal or agency; an act
or step that is part of a larger action."[9] This is in contradistinction with a "complaint,"
which is "[t]he initial pleading that starts a[n] x x x action and states the basis for the
court's jurisdiction, the basis for the plaintiff's claim, and the demand for relief."[10]

In Francisco, this Court stated that the impeachment "proceeding" consists of the
following steps:

(1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee
which may either reject the complaint or uphold it; (3) whether the resolution of the
Committee rejects or upholds the complaint, the resolution must be forwarded to the
House for further processing; and (4) there is the processing of the same complaint by
the House of Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-third of all the members. x
x x[11]

Here, both the First and Second Complaint separately went through these steps - they
were filed, referred to the Speaker of the House, included in the Order of Business,
referred to the House Committee on Justice, and separately considered by the
Committee. In fact, the records bear out that each individual complaint was separately
scrutinized to determine whether each was sufficient in form and substance, and the
petitioner was required to answer both complaints. In all respects, there were two
proceedings.
To summarize:

First Complaint Second Complaint

Date of Filing July 22, 2010[12] August 3, 2010[13]
Complainants Risa Hontiveros-Baraquel, Danilo Lim, Felipe Pestao, and Evelyn Pestao
Renato Reyes, Mother Mary John Mananzan, Danilo Ramos, Atty. Edre Olalio, Ferdinand
Gaite, and James Terry Ridon
Endorsers from the House of Representatives AKBAYAN Representatives Hon. Arlene
Bag-ao and Walden Bello Hon. Representatives Neri Javier Colmenares, Rafael Mariano,
Teodoro Casino, Luzviminda Ilagan, Antonio Tinio, and Emeranciana A. De Jesus
Grounds raised Betrayal of Public Trust 1. dismal conviction rate of the Ombudsman
from 2008 onwards
2. failure to take prompt and immediate action re former President Arroyo and her
husband, Jose Miguel T. Arroyo with regard to the NBN-ZTE Broadband Project
3. delay in conducting and concluding the investigation on the death of Ensign Philip
Andrew Pestano
4. decision upholding the legality of the arrest and detention of Rep. Risa Hontiveros-
Baraquel by the Philippine National Police in 2006
5. failure to conduct an investigation into the PhP1,000,000.00 dinner at Le Cirque in
New York Betrayal of Public Trust 1. the delay and failure in prosecuting those involved in
the Fertilizer Fund Scam 2. the failure to prosecute "Euro General" PNP Director Eliseo de
la Paz for violating BSP regulations on taking out of the country currency in excess of
US$10,000,000 without declaring the funds to the Philippine Bureau of Customs

Culpable Violation of the Constitution

1. the delay or inaction in conducting the investigations and filing criminal cases against
responsible COMELEC officials pursuant to the directive given by the Supreme Court in
Information Technology Foundation of the Philippines, et al. v. COMELEC, et al.

Culpable Violation of the Constitution

1. repeated delays and failure to take action on cases impressed with public interest
2. refusal to grant access to public records such as the Statement of Assets Liabilities
and Net Worth
Transmittal to the Speaker of the House July 27, 2010[14] August 4, 2010[15]
Directive regarding inclusion in the Order of Business August 2, 2010[16] August 9,
2010[17]
Referral by the Speaker of the House to the Committee on Justice August 11, 2010
August 11, 2010

Results of Vote on whether or not the complaint was Sufficient in Form (September 1,
2010) 39 in favor, 1 against 31 in favor, 9 against
Results of vote on whether or not the Complaint was sufficient in substance (September
7, 2010) 41 in favor, 14 against 41 in favor, 16 against

These two complaints have, in all respects, been treated separately by the House, and
each stands alone. In fact, the complaints have been treated in separate proceedings, as
indicated by the fact that there was no identity in the votes received by each complaint.
[18]

To use the analogy of the candle, each matchstick is a separate impeachment complaint,
and referral may ignite the wick. But in reality, only one matchstick will cause the candle
to melt; the other may feed the flame, but a candle, once lit, stays lit, the second
matchstick becomes superfluous. In Shakespeare's immortal words, "what's done is
done."[19] In truth, each matchstick ignites a separate candle, because separate and
distinct proceedings are contemplated.
But perhaps we need not venture so far for an analogy. Just like in a regular lawsuit,
different parties may prepare their initiatory complaints and file them in court. The Clerk
of Court then refers the complaints to the branch for appropriate action. Even if the
Clerk of Court refers two complaints to the same branch at exactly the same time, this
does not detract from the fact that two proceedings have been initiated, particularly
where each complaint alleges different causes of action. And though the branch may
hear the two complaints in one hearing, the two proceedings remain separate and
distinct.

To summarize, notwithstanding simultaneous referral, once the First Complaint was

initiated, that is to say, filed and referred to the Committee on Justice, no other
proceeding could be initiated against the petitioner. This protection granted by the
Constitution cannot be waved away merely by reference to the "layers of protection for
an impeachable officer" and the likelihood that the number of complaints may be
reduced during hearings before the Committee on Justice. As such, the filing and referral
of the First Complaint against the petitioner precluded the Committee on Justice from
taking cognizance of the Second Complaint.

However, though the Second Complaint is barred by Section 3(5) of the Constitution, the
House Committee on Justice should be allowed to proceed with its hearing on the First
Complaint.

I believe the Members of this Court are well aware of the tension here between the
clamor for public accountability and claims of judicial overreach vis--vis the demand
that governmental action be exercised only within Constitutional limits. In fact, our work
here has been called unjustifiable arrogance by an unelected minority who condescends
to supplant its will for that of the sovereign people and its elected representatives.[20]
Nonetheless, try as we might, we cannot shirk from our duty to "say what the law is."[21]
Particularly, if one conceives of the law as both the reflection of society's most cherished
values as well as the means by which we, as a nation, secure those values, then this
Court can do no less than ensure that any impeachment proceedings stand on
unassailable legal ground, lest the provisions of our fundamental law be used to work an
evil which may not be fully measured from where we stand.

ACCORDINGLY, I vote that: (1) the status quo ante order should be LIFTED; and (2) the
proceedings on the First Impeachment Complaint should be allowed to continue.
However, proceedings on the Second Complaint are barred by Section 3(5), Article XI of
the Constitution.

--------------------------------------------------------------------------------
[1] 460 Phil. 830 (2003).

[2] Id. at 932.

[3] Id. at 933.

[4] See Francisco, Jr. v. The House of Representatives (Azcuna, Separate Opinion), id. at
1053, citing the deliberations of the 1986 Constitutional Commission. During said
deliberations, Mr. Romulo, in response to queries regarding the one-year limitation,
stated:

MR. ROMULO: Yes, the intention here really is to limit. This is not only to protect public
officials who, in this case, are of the highest category from harassment but also to allow
the legislative body to do its work which is lawmaking. Impeachment proceedings take a
lot of time. And if we allow multiple impeachment charges on the same individual to take
place, the legislature will do nothing else but that.

[5] Used here to refer to the Verified Complaint for the Impeachment of Ombudsman Ma.
Merceditas Navarro-Gutierrez filed by Ms. Risa Hontiveros-Baraquel, Mr. Danilo Lim, Mr.
Felipe Pestao, and Ms. Evelyn Pestao with the Resolutions of Endorsement filed by
Representatives Bag-ao and Bello filed on July 22, 2010.

[6] Used here to refer to the Verified Complaint for the Impeachment of Ombudsman Ma.
Merceditas Navarro-Gutierrez filed by Mr. Renato Reyes, Mo. Mary John Mananzan, Mr.
Danilo Ramos and Atty. Edre Olalia with the Resolutions of Endorsement filed by
Representatives Colmenares, Casio, Mariano, Ilagan, Tinio and De Jesus filed on August
3, 2010.

[7] House of Representatives (15th Congress of the Philippines), Journal No. 9, August 11,
2010, available online at http://www.congress.gov.ph/download/journals_15/J09.pdf.

REFERENCE OF BUSINESS

On motion of Rep. Romulo, the Body proceeded to the Reference of Business, and the
Chair directed the Secretary General to read the following House Bills and Resolutions on
First Reading, which were referred to the appropriate Committees hereunder indicated:

xxxx

ADDITIONAL REFERENCE OF BUSINESS

Verified complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-

Gutierrez filed by Ms. Risa Hontiveros-Baraquel, Mr. Danilo Lim, Mr. Felipe Pestano, and
Ms. Evelyn Pestano with the Resolutions of Endorsement filed by Representatives Bag-ao
and Bello

TO THE COMMITTEE ON JUSTICE

Verified complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-

Gutierrez filed by Mr. Renato Reyes, Mo. Mary John Mananzan, Mr. Danilo Ramos and Atty.
Edre Olalia with the Resolutions of Endorsement filed by Representatives Colmenares,
Casio, Mariano, Ilagan, Tinio and De Jesus

TO THE COMMITTEE ON JUSTICE (Rollo, p. 576)

See also, the Congressional Record of the Plenary Proceedings of the 15th Congress, First
Regular Session, Volume 1, No. 9, Wednesday, August 11, 2010, available online at
http://www.congress.gov.ph/download/congrec/15th/1st/15C_1RS-09-081110.pdf. The
records indicate that "[t]he Secretary General read the following House Bills and
Resolutions on First Reading, and the Deputy Speaker made the corresponding
references."

[8] The TSN of the Oral Arguments before this Court dated October 12, 2010, pages 146-
150 states:

Associate Justice Nachura: Ah, one final thing, if this Court should decide not to revisit
Francisco, a question I asked Assistant Solicitor General Laragan is that, when there are
two complaints, [is it] the second complaint that is [infirm] if the second complaint is
referred [to] the House Committee, after the first complaint shall have been referred?
[Thus] the second complaint that will now be [infirm] and barred by Francisco.
Ret. Justice Mendoza: Yes with particular reference to the facts of this case, it would be
the second complaint (interrupted)
Associate Justice Nachura: The second complaint (interrupted)
Ret. Justice Mendoza: That would have [to] be dropped, if Your Honor please, for the
simple reason that in the proceedings of the (interrupted)
Associate Justice Nachura: House
Ret. Justice Mendoza: . . . House, on August 11 (interrupted).
Associate Justice Nachura: Eleven
Ret. Justice Mendoza: ... 2010, the Order of Business. If you look just at the Order of
Business listed the first complaint filed by Risa Hontiveros-Baraquiel and three others
ahead of the second complaint, and not only that, set or, rather, shows after reading the
(interrupted)
Associate Justice Nachura: Order of Business
Ret. Justice Mendoza: ... title of the complaint, this is the action taken by the Speaker,
refer it to the Committee on Justice accompanied by the banging of the gavel, so that if
we have to be (interrupted)
Associate Justice Nachura: Technical
Ret. Justice Mendoza: Concerned with, not only our second, ah, minute and seconds of
what is done, then I would say just looking at these, that there are time difference
between the action taken here in referring the first complaint and the action taken in
referring the second complaint which was similarly, read afterward, and then the Speaker
said to the Committee on Justice accompanied or followed by the banging of the gavel to
signify the action of the Chair.
Associate Justice Nachura: That - that is what?
Ret. Justice Mendoza: But - But that's not [a] concern and I am sure that this Court did
not intend that when it wrote the Francisco ruling.
Associate Justice Nachura: Ah, that is precisely what I asked Assistant Solicitor General
Laragan, that it would not [have] been possible to say that both complaints were referred
at the same time, because the House in plenary would have acted on each individual
complaint in the Order of Business separately. And the referral technically could not have
happened at the same time, to the exact minute and the exact second. And so if we
were to x x x apply Francisco very strictly the second complaint would be barred.
Ret. Justice Mendoza: Yes.

[9] Black's Law Dictionary (9th ed. 2009) (available online at www.westlaw.com).

[10] Id.

[11] Supra note 1 at 931, adopting the explanation of Fr. Joaquin G. Bernas, S.J.

[12] Rollo, p. 91.

[13] Id. at 133.

[14] Id. at 561.

[15] Id. at 563.

[16] Id. at 562.

[17] Id. at 564

[18] On the question of sufficiency in form, the Minutes of the Meeting of the Committee
on Justice held on September 1, 2010, Wednesday, 9:30 AM (Id. at 76-82), provide:

xxxx

Rep. Farias then moved to declare the first impeachment complaint filed [sic] Risa
Hontiveros-Baraquel as sufficient in form. The motion was duly seconded. x x x

xxxx

With 39 votes in favor and 1 against, the Chair declared the first impeachment complaint
filed by Risa Hontiveros-Baraquel as sufficient in form.

Rep. Casio also moved that the Committee likewise vote to declare the second
complaint file [sic] by Mr. Renato Reyes, et al. sufficient in form. The motion was duly
seconded. With 31 members in favor of the motion and 9 members against, the motion
to declare the second impeachment complaint sufficient in form was carried. (Id. at 80-
81)

On the question of sufficiency in substance, the Minutes of the Meeting of the Committee
on Justice held on September 7, 2010, Tuesday, 9:30 AM (Id. at 555-560), provide:

xxxx

Thereafter Rep. Farias repeated his previous motion to find the Hontiveros complaint
sufficient in substance, which was duly seconded by Rep. Remulla. The Chairman
proceeded with the voting on the motion, and with forty-one (41) members in favor and
only fourteen (14) against, the Chairman declared the impeachment complaint of
Hontiveros, et al sufficient in substance.

Rep. Farias then made a motion to find the impeachment complaint filed by Reyes, et
al. sufficient in substance. x x x (Id. at 560)

xxxx

With forty one (41) votes in favor of the motion, and sixteen (16) against, and one (1)
refusal to vote, the Chairman declared the impeachment complaint filed by Reyes, et al.
sufficient in substance.

[19] Macbeth, act 3, scene 2, line 12.

[20] The phrase "counter-majoritarian difficulty" as an issue in constitutional law theory

is widely attributed to Alexander Bickel's 1962 book entitled The Least Dangerous
Branch: The Supreme Court at the Bar of Politics.

[21] Marbury v. Madison, 5 U.S. 137, 177 (1803), 1803 WL 893.

--------------------------------------------------------------------------------

SEPARATE CONCURRING OPINION

ABAD, J.:

The Facts and the Case

On July 22, 2010 respondents Risa Hontiveros-Baraquel and others filed with the
Secretary General of respondent House of Representatives (the House) a verified
impeachment complaint (First Complaint) against petitioner Ombudsman Ma. Merceditas
N. Gutierrez for betrayal of public trust and culpable violation of the Constitution. Two
members of the House endorsed this complaint. To sum up, the complaint alleges:

1. Betrayal of Public Trust

a. The dismal and unconscionably low conviction rates by the Office of the Ombudsman
from 2008 onwards;
b. The failure to take prompt and immediate action on the complaints filed against
former President Gloria Macapagal-Arroyo and her husband, Jose Miguel T. Arroyo, with
regard to the NBN-ZTE Broadband Project;

c. The inexcusable delay in conducting and concluding an investigation on the death of

Ensign Philip Andrew Pestao aboard a Philippine Navy vessel;

d. The decision upholding the legality of the arrest and involuntary detention of Risa
Hontiveros-Baraquel by the PNP in March 2006; and

e. The failure to conduct an investigation with regard to the P1,000,000 presidential

party dinner at Le Cirque Restaurant in New York in August 2009;

2. Culpable Violation of the Constitution

a. The repeated failures to take prompt action on cases involving official abuse and
corruption in violation of Section 12, Article XI, and Section 16, Article III, of the
Constitution; and

b. The refusal to grant ready access to public records such as the Statement of Assets
and Liabilities and Net Worth in violation of Section 13(6), Article XI and Section 7, Article
III of the Constitution.

On July 23, 2010 the 15th Congress opened its regular session. Shortly after or on August
3, 2010 respondents Renato M. Reyes, Jr. and others filed with the Secretary General of
the House another verified impeachment complaint (Second Complaint) against
Ombudsman Gutierrez also for betrayal of public trust and culpable violation of the
Constitution. Seven members of the House endorsed the complaint, which alleges:

1. Betrayal of Public Trust

a. The gross inexcusable delay in investigating and failure in prosecuting those involved
in the anomalous transactions arising from the Fertilizer Fund Scam despite the blatant
anomalous transactions revealed in the COA Findings, Senate Committee Report 54 and
the Complaints filed with the Ombudsman on the said Fertilizer Fund Scam;

b. The failure to prosecute General Eliseo De La Paz for violating BSP Circular 98 (1995),
as amended by BSP Circular 507 (2006), in relation to Republic Act 6713, which prohibits
the taking out of the country of currency in excess of US$10,000 without declaring the
same to the Philippine Customs, despite the public admission under oath by General De
La Paz before the Senate Blue Ribbon Committee; and

c. The gross inexcusable delay or inaction by acting in deliberate disregard of the

Supreme Court's findings and directive in its Decision and Resolution in Information
Technology Foundation of the Philippine, et al. v. Commission on Elections, et al.

2. Culpable Violation of the Constitution

a. The repeated failures and inexcusable delay in acting upon matters brought before her
office, thus violating Sections 12 and 13(1)(2)(3), Article XI and Section 16, Article III of
the Constitution, which mandates prompt action and speedy disposition of cases.

On even date, the House provisionally adopted the Rules of Procedure in Impeachment
Proceedings of the 14th Congress.[1] On August 11, 2010 it simultaneously referred the
first and second complaints to the House Committee on Justice (the Justice Committee).
During its hearing on September 1, 2010 the Justice Committee found the first and
second complaints sufficient in form. On September 6, 2010 Ombudsman Gutierrez filed
a motion for reconsideration of the committee's finding on the grounds that:

1. Such finding violates Section 3(5), Article XI of the 1987 Constitution which bars more
than one impeachment proceeding against the same impeachable officer within a period
of one year;

2. The contemplated consolidation of the two complaints also violates Section 3(5),
Article XI of the 1987 Constitution and would permit Congress to do indirectly what it is
proscribed from doing directly; and

3. The finding of the Justice Committee violates Section 13, Rule 110 of the Rules of
Court which provides that a complaint must charge only one offense.

The Justice Committee declined to accept Ombudsman Gutierrez's motion for

reconsideration for being premature. It advised her instead to just include in her answer
the grounds she cited in her motion.

During its hearing on September 7, 2010 the Justice Committee found the two
complaints sufficient in substance. On even date, it caused the service of summons and
copies of the two complaints on Ombudsman Gutierrez with a directive for her to file her
answer to the same within ten days. This prompted her to file the present action,
assailing the constitutionality of the Justice Committee's action in finding the two
complaints sufficient in form and substance.

The Key Issue Presented

The key issue in this case is whether or not the House Justice Committee's findings that
the two complaints against Ombudsman Gutierrez are sufficient in form and substance
violate Section 3(5), Article XI of the 1987 Constitution which provides that no
impeachment proceedings shall be initiated against the same official more than once
within a year.

Discussion

The impeachment of public officials has been established for removing otherwise
constitutionally tenured and independent public officials--the President, the Vice-
President, the Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman--for culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust.[2] The power
to initiate impeachment cases rests with the House while the power to try the same rests
with the Senate.[3]

The pertinent provisions of Section 3, Article XI of the 1987 Constitution summarizes the
steps that lead to the impeachment of the above public officials:

Sec. 3. x x x

(2) A verified complaint may be filed by any Member of the House of Representatives or
by any citizen upon a resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after hearing, and by a
majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall
be calendared for consideration by the House within ten session days from receipt
thereof.

(3) A vote of at least onethird of all the Members of the House shall be necessary
either to affirm a favorable resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of each Member shall be
recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least

onethird of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.

To sum up the various steps leading to the impeachment of a public official are:

One. A verified complaint for impeachment is filed by a member of the House or

endorsed by him;

Two. The complaint is included in the order of business of the House.

Three. The House refers the complaint to the proper Committee;

Four. The Committee holds a hearing, approves the resolution calling for impeachment,
and submits the same to the House.

Five. The House considers the resolution and votes to approve it by at least onethird
of all its members, which resolution becomes the article of impeachment to be filed with
the Senate when approved; and

Six. The Senate tries the public official under the article.

The root of the present problem is that the impeachment of a public official may be said
to be "initiated" in two ways under the above steps. The first is the complaint "initiated"
in the House under Step One. Section 3 (1) of Article XI provides that the House of
Representatives shall have the exclusive power to "initiate" all cases of impeachment.
The second is the article of impeachment "initiated" in the Senate under Step Five
following a favorable vote in the House.

Ombudsman Gutierrez's view is that there is just one impeachment proceeding and this
covers the actions of both the House and the Senate in one unified process. She infers
from this that it is actually the filing of the complaint in the House that initiates the one
"impeachment proceeding" and this bars a second one filed within the year. In the
Francisco case, the Court interpreted the term "to initiate" under Section 3(5) as the
filing of the impeachment complaint coupled with Congress' taking initial action of said
complaint.[4] Such initial action consists of the referral or endorsement of the
impeachment complaint to the Committee.[5]

As amicus curiae, Fr. Bernas said in the Francisco case that "the Constitution is ratified by
the people, both ordinary and sophisticated, as they understand it; and that ordinary
people read ordinary meaning into ordinary words and not abstruse meaning, they ratify
words as they understand it and not as sophisticated lawyers confuse it."[6]
Based on common usage in this jurisdiction, a "proceeding" described in the terms of an
initiated action refers to a proceeding filed before the court, body, or tribunal that
ultimately has the jurisdiction to hear and decide such action. For example, an
"expropriation proceeding" is one instituted in the court that can hear and decide it,
namely, the Regional Trial Court.[7] It is the same with an "escheat or reversion
proceeding,"[8] an "ejectment proceeding," an "estate proceeding," or an "adoption
proceeding." Each of these proceedings or actions is lodged in the body or tribunal in
which the law ultimately vests the power to hear and decide it.

Thus, when the Constitution speaks of "impeachment proceedings" it should be

understood to refer to the action or case instituted in the Senate in which the power to
hear and decide such proceedings is ultimately lodged. In this jurisdiction, the terms
"case" and "proceeding" are often interchangeably used. A "case" is a legal action or
suit.[9] "Proceeding" means the carrying on of an action or course of action.[10] The
Constitution does not appear to draw any distinction between these two terms. At any
rate, the power that the Constitution gives the House is only the power to initiate all
cases of impeachment, not the ultimate power to hear and decide such cases. Thus:

Sec. 3. (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

For the above reason, it cannot be said that it is the party who files a verified complaint
against the public official that initiates an impeachment case or proceeding. It is the
House that does. Actually, the House exercises this power of initiation by filing the
article of impeachment with the Senate. The power to initiate belongs to the House, not
to any of its committees, provided the House is able to muster at least one-third vote of
all its members in session assembled as the Constitution requires when the
impeachment resolution is taken up.

The initiation of an impeachment case by the House of course follows a process: the
filing of the complaint, the referral to the Justice Committee, the hearing by such
committee, the committee voting over its resolution, the submission of the committee
report to the plenary, and the vote to initiate an impeachment case. But this process
should be correctly characterized as the House "initiation proceeding," not the
"impeachment proceeding" itself.

Besides, one needs to be guided only by the purpose of this constitutional provision. The
initiation of the impeachment proceeding in the House is intended to be a preliminary
step for the determination of the sufficiency of the allegations against the impeachable
public official. It is akin to a preliminary investigation in a criminal case where probable
cause is determined against the accused. If there is probable cause to indict the
impeachable public official, then the Articles of Impeachment is transmitted to the
Senate. In a criminal case, a criminal complaint or information is then filed in court
against the accused.

It is a settled principle that once the policy or purpose of the law has been ascertained,
effect should be given to it by the judiciary.[11] While the one year bar was provided to
ensure that the public official is not subjected to considerable harassment and to allow
the legislature to do its principal task of legislation, the constitutional provision on
impeachment must be viewed, foremost, as a means to protect the State and the people
from erring and abusive high ranking public officials. To interpret the one year bar to
commence from the disposition by the vote of at least one-third of all the members of
the House gives the constitutional provision on impeachment more meaning and
effectiveness. It affords more protection to the public interests since the initiation of
impeachment complaints would no longer be a race against time. A slippery
impeachable public official would not be able to pre-empt the filing within the year of a
meritorious impeachment complaint against him by the simple expedience of colluding
with someone to file first a baseless impeachment complaint against him.
In the end, the protection of the vast majority must be of paramount importance over
and above any perceived inconvenience on the part of any impeachable public official.

At any rate, the issue of whether or not a case of impeachment initiated in the Senate
can embody multiple of unrelated charges is not before this Court. I reserve my view on
such issue when it arises.

I vote to dismiss the petition based on the above reasons.

--------------------------------------------------------------------------------
[1] On September 2, 2010 the 15th Congress published its Rules of Procedure in
Impeachment Proceedings.

[2] Section 2, Article XI. Accountability of Public Officers, 1987 Constitution.

[3] Section 3 (1) and (4), id.

[4] 415 SCRA 44, 169.

[5] Id. at 169-170.

[6] Id. at 169.

[7] Section 12, Chapter 4, Title, Book III.

[8] Section 13, id.

[9] Webster's New World College Dictionary, 3rd Edition, p. 217.

[10] Webster's New World College Dictionary, 3rd Edition, p. 1072.

[11] Cecilleville Realty and Service Corp. v. Court of Appeals, G.R. No. 120363,
September 5, 1997, 278 SCRA 819, 826.

--------------------------------------------------------------------------------

SEPARATE CONCURRING
AND DISSENTING OPINION

PEREZ, J.:

The present case asks: Did the referral to the House of Representatives Committee on
Justice of two complaints for the impeachment of the petitioner violate Section 3(5),
Article XI of the Constitution? I respectfully submit that the successive referrals of the
complaints are constitutionally prohibited.

The Impeachment Complaints

Petitioner Ma. Merceditas N. Gutierrez is the incumbent Ombudsman of the Republic of

the Philippines.[1]

On 22 July 2010, an Impeachment Complaint against the petitioner was filed before the
House of Representatives[2] by private respondents Risa Hontiveros-Baraquel, Danilo D.
Lim, Felipe Pestao and Evelyn Pestao.[3] The complaint (First Complaint) charges the
petitioner of Betrayal of Public Trust and Culpable Violation of the Constitution, allegedly
committed thru the following acts and omissions:

A. Betrayal of Public Trust

The dismal and unconscionable low conviction rate of the Ombudsman from 2008
onwards;

The failure to take prompt and immediate action against former President Gloria
Macapagal-Arroyo and her husband, Jose Miguel T. Arroyo, with regard to the NBN-ZTE
Broadband project;

The delay in conducting and concluding an investigation on the death of Ensign Philip
Andrew Pestao aboard a Philippine Navy vessel;

The decision upholding the legality of the arrest and detention of Rep. Risa Hontiveros-
Baraquel by the PNP in March 2006;

The failure to conduct an investigation with regard to the Php 1,000,000.00 dinner at Le
Cirque Restaurant in New York in August 2009;

B. Culpable Violation of the Constitution

The repeated delays and failures to take action on cases impressed with public interest;
and
The refusal to grant ready access to public records such as the Statement of Assets and
Liabilities.

The First Complaint was referred to the Speaker of the House of Representatives,
Feliciano R. Belmonte, Jr., on 27 July 2010.[4] On 2 August 2010, Speaker Belmonte, Jr.
forwarded the First Complaint to the House Committee on Rules for its inclusion in the
Order of Business.

On 3 August 2010, another impeachment complaint (Second Complaint) against the

petitioner was filed with the House of Representatives. This time around, the
complainants were private respondents Renato M. Reyes, Jr., Mother Mary John
Mananzan, Danilo Ramos, Atty. Edre Olalia, Ferdinand Gaite and James Terry Ridon.[5]

The Second Complaint, like the First Complaint, also accuses the petitioner of Betrayal of
Public Trust and Culpable Violation of the Constitution, but is premised on different acts
and omissions. Thus:

Betrayal of Public Trust

Ombudsman Gutierrez committed gross inexcusable delay in investigating and failure in

prosecuting those involved in the anomalous transactions arising from the Fertilizer Fund
Scam despite the blatant anomalous transactions revealed in the COA Findings, Senate
Report 54 and the Complaints filed with respondent on the said Fertilizer Scam;

Ombudsman Gutierrez did not prosecute General Eliseo de la Paz for violating BSP
Circular 98 (1995), as amended by BSP Circular 507 (2006), in relation to Republic Act
6713, which prohibits the taking out of the country of currency in excess of
US$10,000.00 without declaring the same to the Philippine Customs, despite the fact
that General Eliseo de la Paz publicly admitted under oath before the Senate Blue Ribbon
Committee that he took out the country currency in excess of US$10,000.00 without
declaring the same to the Philippine Customs;

Ombudsman Gutierrez committed gross inexcusable delay or inaction by acting in

deliberate disregard of the Supreme Court's finding and directive in its Decision and
Resolution in Information Technology Foundation of the Philippines, et al. v. Commission
on Elections, et al.; and

Culpable Violation of the Constitution

Through her repeated failures and inexcusable delay in acting upon the matters brought
before her Office, Ombudsman Gutierrez violated Section 12 and Section 13, Paragraphs
1, 2 and 3, Article XI on which her constitutional duty is enshrined, as well as Section 16,
Article III of the Constitution, which mandates prompt action and speedy disposition of
cases.

The Second Complaint reached the desk of Speaker Belmonte, Jr. on the same day it was
filed. On 9 August 2010, Speaker Belmonte, Jr. forwarded the Second Complaint to the
House Committee on Rules.

Then, on 11 August 2010, the plenary simultaneously referred the First and Second
Complaints to the public respondent House Committee on Justice.

The Proceedings Before the House Committee on Justice

On 1 September 2010, the House Committee on Justice conducted a hearing to

determine whether the First and Second Complaints were sufficient in form. The hearing
was presided by the Chairman of the House Committee on Justice, Representative Niel C.
Tupas, Jr.

After taking up preliminary matters,[6] the House Committee on Justice found the First
Complaint sufficient in form by a vote of 39 in favor and 1 against. Upon a separate vote
of 31 in favor and 9 against, the House Committee on Justice also found the Second
Complaint to be formally valid. In assessing formal validity, the House Committee on
Justice took into account the fact that the two (2) complaints were referred to it at
exactly the same time and that both were duly verified.

On 6 September 2010, the petitioner attempted to file a Motion for Reconsideration with
the House Committee on Justice. In it, she sought to question the authority of the House
Committee on Justice to take cognizance of two (2) impeachment complaints against
her--in light of the constitutional proscription against the initiation of multiple
impeachment proceedings against the same official within a one-year period. The House
Committee on Justice, however, refused to receive this motion.[7]

On 7 September 2010, the House Committee on Justice reconvened to determine the

sufficiency in substance of the First and Second Complaints. By votes of 41 in favor and
14 against for the First Complaint and 41 in favor and 16 against for the Second
Complaint, the House Committee on Justice declared both to be sufficient in substance.
The House Committee on Justice, thereafter, issued summons directing the petitioner to
file an answer within ten (10) days from its receipt. The summons, as well as copies of
the First and Second Complaints, was served upon the petitioner at 5:05 in the afternoon
of the very same day.

The petitioner did not file an answer.

Resort to the Supreme Court and the Status Quo Ante Order
Aggrieved by the actions of the House Committee on Justice, the petitioner came to this
Court via the instant Petition for Certiorari and Prohibition with prayer for the issuance of
a Temporary Restraining Order and/or Writ of Preliminary Injunction. In sum, the petition
asks for the nullification of the House Committee on Justice's findings that the First and
Second Complaints were sufficient in form and substance.

On 14 September 2010, this Court issued a Resolution directing the parties to observe
the status quo prevailing before the House Committee on Justice made the contested
findings.

DISCUSSION

The submission of the petitioner may be summarized into two principal issues.

The first is whether the House Committee on Justice, in taking cognizance of two (2)
impeachment complaints against the petitioner, violated Section 3(5), Article XI of the
Constitution. It is the primary contention of the petitioner that the House Committee on
Justice is already precluded from acting upon the Second Complaint--the same having
been barred under the Constitution by virtue of the filing of the First Complaint.

The second is whether the hearings conducted by the House Committee on Justice
violated the petitioner's right to due process.[8]

In this opinion, however, I only wish to articulate my reflections on the first.

Section 3(5), Article XI of the Constitution succinctly states:

No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.

In practical terms, the provision operates to bar the initiation of an impeachment

proceeding against an official, when the following conditions are present:

a.) an impeachment proceeding against such official was previously initiated; and

b.) one year has not yet elapsed from the time of the previous initiation.

Initiation of an impeachment proceeding was, in turn, the subject of the landmark case
Francisco, Jr. v. The House of Representatives, represented by Speaker Jose G. De
Venecia.[9] In that case, this Court laid down the rule that, unless the verified complaint
is filed by at least 1/3 of the members of the House of Representatives, initiation takes
place upon the filing of the complaint coupled by its referral to the proper committee.
[10]

Invoking Francisco as their guide, the respondents proffer the position that the House
Committee on Justice may validly act on both the First and Second Complaints. The filing
of the First Complaint did not bar the Second Complaint because the mere filing of a
verified complaint does not mark the initiation of an impeachment proceeding. The
respondents emphasized that Francisco associated the initiation of an impeachment
proceeding not only with the filing of a complaint but also with the referral thereof to the
proper committee.

It is argued that since there was, in this case, but a single referral of the two (2)
complaints to the House Committee on Justice--the logic of Francisco dictates that there
was also only one impeachment proceeding initiated. Thus, the respondents concluded,
there can be no violation of Section 3(5), Article XI of the Constitution.
I disagree.

No Simultaneous Referral of Two Complaints

To begin with, there never was a "single" or "simultaneous" referral of the two (2)
impeachment complaints against the petitioner. Contrary to what the respondents
adamantly profess, the complaints were not referred to the House Committee on Justice
"at exactly the same time." A perusal of the records of the House of Representatives
plenary proceedings on 11 August 2010[11] reveals that the two (2) impeachment
complaints were actually referred to the House Committee on Justice one after the other.
Thus:[12]

ADDITIONAL REFERENCE OF BUSINESS

Verified Complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-

Gutierrez filed by Ms. Risa Hontiveros-Baraquel, Mr. Danilo Lim, Mr. Felipe Pestao, and
Ms. Evelyn Pestao with the Resolutions of Endorsement filed by Representatives Bag-ao
and Bello

TO THE COMMITTEE ON JUSTICE

Verified Complaint for the Impeachment of Ombudsman Mr. Renato Reyes, Mo. Mary John
Mananzan, Mr. Danilop Ramos at Atty. Edre Olalia with the Resolutions of Endorsement
filed by Representatives Colmenares, Casio, Mariano, Ilagan, Tinio and De Jesus

TO THE COMMITTEE ON JUSTICE

The above entries plainly attest that, in fact, the reading and referral of the First
Complaint preceded that of the Second Complaint. True, the impeachment complaints
were referred to the House Committee on Justice on the same date and during the same
session, but there can be no mistake that each complaint was, nevertheless, the subject
of a separate and distinct referral.

This fact has immense constitutional consequences. A prior referral of the First Complaint
to the House Committee on Justice would mean that an impeachment proceeding against
the petitioner was, by then, already completely initiated. This, by the Francisco ruling,
renders inutile the succeeding referral of the Second Complaint and makes such referral
together with its subject, which is the Second Complaint, unconstitutional excesses that
can be given neither force nor effect. Francisco prohibits rather than justifies a second
referral.

Cognizance of this fact necessitated the creation of the fiction that the referrals of the
impeachment complaints were done "at the same time." This is shown by the floor
exchanges following the successive referrals of the complaints.

Representative Tupas rose on a parliamentary inquiry to seek, among others, a

clarification on "what was the exact time the two impeachment complaints were referred
to the Committee on Justice."[13] The answer would become the battlecry of the
respondents:

THE DEPUTY SPEAKER (Rep. Daza). The Dep. Majority Leader is recognized.

REP. TUPAS. Mr. Speaker, parliamentary inquiry.

THE DEPUTY SPEAKER (Rep. Daza). The Gentleman may state his inquiry.

REP. TUPAS. Mr. Speaker, with respect to the impeachment complaints, may this
Representation know: number one, Mr. Speaker, when were the complaints filed; number
two, when were they referred to the Committee on Rules; and number three, Mr.
Speaker, what was the exact time the two impeachment complaints were referred to the
Committee on Justice?

THE DEPUTY SPEAKER (Rep. Daza). The Dep. Majority Leader will please respond.

REP. ROMULO. Mr. Speaker, in response to the query of the Honorable Tupas, the
Committee on Rules received the verified complaint for impeachment from the Speaker
of the House yesterday. The date of the first verified complaint filed by Miss Risa
Hontiveros-Baraquel, et al., based on the letter of the Speaker, was dated July 22. The
complaint filed by Mr. Renato Reyes, et al., based on the date of the letter of the
Speaker, was dated August 3. Both letters were received during the Committee on Rules'
meeting on August 10 at the same time at 2:00 p.m. yesterday, and both complaints
were jointly referred by the Committee on Rules to the Committee on Justice.

THE DEPUTY SPEAKER (Rep. Daza). Is the Gentleman from Iloilo satisfied with the
response of the Dep. Majority Leader?

REP. TUPAS. Partly, Mr. Speaker, but the third question is: what is the exact time of the
referral to the Committee on Justice? This Representation would like to know the exact
time the two complaints were referred to the Committee on Justice, Mr. Speaker.

THE DEPUTY SPEAKER (Rep. Daza). Is the Dep. Majority Leader prepared to answer the
query now? The Gentleman from Iloilo, the Chairman of the Committee on Justice, is
querying with regard to a time frame, schedule or a cut-off time.

REP. TUPAS. Mr. Speaker, what I am asking is the exact time of the referral to the
Committee on Justice.

THE DEPUTY SPEAKER (Rep. Daza). Yes. The Dep. Majority Leader will please respond.

REP. ROMULO. Mr. Speaker, the complaints were referred to the Committee on Justice at
the same time at 4:47 p.m. today.

REP. TUPAS. Thank you very much, Mr. Speaker.[14] [Emphasis and underscoring
supplied].

I cannot, however, accept as possible, in fact or fiction, that the First and Second
Complaints have been "referred to the Committee at the same time." The
announcement of simultaneity did not alter the true manner of the referrals as clearly
reflected in the records of the plenary session.

Interestingly, during the Oral Arguments on 12 October 2010, even the esteemed
collaborating counsel for respondent House Committee on Justice, former Supreme Court
Associate Justice Vicente Mendoza, admitted the "physical impossibility" of referring two
(2) separate complaints at the same time, as shown by the following exchange:

Associate Justice Nachura:

Ah, that is precisely what I asked Assistant Solicitor General Laragan, that it would not
had [sic] been possible to say that both complaints were referred at the same, because
the House in plenary would have acted on each individual complaint in the Order of
Business separately. And the referral technically could not have happened at the same
time, to the exact minute and the exact second. And so if we were to in - aah, wait, if we
were to apply Francisco very strictly the second complaint would be barred.

Ret. Justice Mendoza:

Yes.[15] (Emphasis supplied).

The recorded reality is that the First Complaint was referred to the House Committee on
Justice before the Second Complaint. An impeachment proceeding was already initiated
against the petitioner even before a single word about the Second Complaint was read
before the plenary. On this score alone, the Second Complaint should be held barred.

One Complaint, One Impeachment Proceeding

The fact as big as the recorded successive referrals is that the contrived simultaneous
referral or single referral to the House Committee on Justice of multiple impeachment
complaints is not allowed under Section 3(5), Article XI of the Constitution.

The initiatory act of "filing and referral," envisioned in the Francisco case, can only have
one (1) impeachment complaint as its subject. Allowing a referral to the House
Committee on Justice of multiple complaints would not only amount to a distortion of
both Francisco and the constitutional provision it interprets, but would also circumvent
the very purpose of the one-year impeachment ban.

The Proper Context of Francisco

While Francisco may have identified what "acts" make up the initiation of an
impeachment proceeding, it was far from being categorical as to just how many
complaints can be the "subject" thereof. Indeed, other than defining what "acts" are
necessary to accomplish initiation, Francisco never really ventured on the possibility of
several complaints being the subject of only one referral to the House Committee on
Justice and, for that matter, of only one impeachment proceeding.

In Francisco, a second impeachment complaint[16] against then Chief Justice Hilario G.

Davide, Jr. was filed with the House of Representatives after a first complaint,[17] which
concerns him and seven other justices of the Supreme Court,[18] was already filed,
referred to, and even dismissed by the House Committee on Justice.

Under those facts, Francisco simply ruled that an impeachment proceeding against Chief
Justice Davide was already initiated upon the filing and referral to the House Committee
on Justice of the first complaint.[19] Consequently, the second impeachment complaint
was held barred because it was filed within one year from the filing of the first.[20]

The impeachment complaints in Francisco, it may be observed, were never parts of only
a single proceeding. Each complaint was the subject of a separate proceeding--precisely
the reason why the second complaint was held barred under the one-year impeachment
ban. Verily, the limited factual context of Francisco offers no support to the conclusion
that an impeachment proceeding may be driven by more than one (1) complaint. There
is simply nothing in Francisco from which that may be derived.

The Underlying Purposes of Section 3(5), Article XI

of the Constitution

The discussion in Francisco of the underlying purposes of the one- year impeachment
ban renders unquestionable that it cannot be relied upon to sanction a simultaneous
referral of multiple complaints to the House Committee on Justice. This is because an
impeachment proceeding based on more than one (1) complaint brings about exactly the
evils the constitutional proscription seeks to avoid.

The framers of our Constitution formulated the one-year ban in order to forestall possible
abuses of the impeachment process. The deliberations of the 1986 Constitutional
Commission so divulge:

MR. VILLACORTA. Madam President, I would just like to ask the Committee three
questions.
On Section 3, page 2, lines 12 to 14, the last paragraph reads as follows: `No
impeachment proceedings shall be initiated against the same official more than once
within a period of one year.' Does this mean that even if an evidence is discovered to
support another charge or ground for impeachment, a second or subsequent proceeding
cannot be initiated against the same official within a period of one year? In other words,
one year has to elapse before a second or subsequent charge or proceeding can be
initiated. The intention may be to protect the public official from undue harassment. On
the other hand, is this not undue limitation on the accountability of public officers?
Anyway, when a person accepts a public trust, does he not consider taking the risk of
accounting for his acts or misfeasance in office?

MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public
officials who, in this case, are of the highest category from harassment but also to allow
the legislative body to do its work which is lawmaking. Impeachment proceedings take a
lot of time. And if we allow multiple impeachment charges on the same individual to take
place, the legislature will do nothing else but that.[21] [Emphasis and underscoring
supplied].

Section 3(5), Article XI of the Constitution, therefore, serves to curb two (2) possibilities
that may arise should several impeachment proceedings against the same official be
initiated within a one-year period:

a.) the possibility of harassment on the part of the impeachable officer; and

b.) the possibility that the legislative work of Congress would be compromised.

Construing the initiatory acts of "filing and referral" as able to encompass multiple
impeachment complaints would encourage, rather than discourage, the occurrence of
these possibilities. There is no practical difference, at least in terms of their deleterious
effects, between a simultaneous institution of multiple impeachment complaints against
the same official and the initiation of separate impeachment proceedings against him
within a one-year period.

First. Allowing the House Committee on Justice, under the guise of a single referral, to
take cognizance of more than one complaint against the same official would undoubtedly
expose the latter to the risks of undue harassment. Without a cap on the number of
complaints that can be the subject of an impeachment proceeding, the charges against
an impeachable officer can easily become limitless. The situation permits political
opportunists to hurl a plethora of charges against an impeachable officer who, in the
midst of answering those charges, must also perform vital governmental duties.

Second. An impeachment proceeding saddled with multiple complaints draws the

prospect of a protracted impeachment process. A long drawn-out impeachment
proceeding would require the House of Representatives to spend more time as a
prosecutorial body, effectively distracting it from the exercise of its law-making
functions.[22] This contradicts the very nature of the legislature.

I am, as a result, constrained to read the "and referral" part of the Francisco definition of
impeachment initiation as pertaining to one and only one complaint that is allowed to be
filed and referred within a period of one year.

Consistent with the proposition I have accepted, that the initiation of impeachment
consists of the filing of the complaint coupled by its referral to the proper committee, I
accept likewise the delineation that while referral is the logical step that follows the filing
of a complaint, a referral does not necessarily happen once a complaint is filed. I agree
with the ponencia of my senior, Justice Conchita Carpio Morales, that the House of
Representatives has the power to "guard against the initiation of a second impeachment
proceeding by rejecting a patently unconstitutional complaint." May I incorporate into
mine, the position in the ponencia of Justice Morales that:

Under the Rules of the House, a motion to refer is not among those motions that shall be
decided without debate, but any debate thereon is only made subject to the five-minute
rule. Moreover, it is common parliamentary practice that a motion to refer a matter or
question to a committee may be debated upon, not as to the merits thereof, but only as
to the propriety of the referral. With respect to complaints for impeachment, the House
has the discretion not to refer a subsequent impeachment complaint to the Committee
on Justice where official records and further debate show that an impeachment
complaint filed against the same impeachable officer has already been referred [to] the
said committee and the one year period has not yet expired, lest it becomes
instrumental in perpetrating a constitutionally prohibited second impeachment
proceeding. Far from being mechanical, before the referral stage, a period of
deliberation is afforded the House, as the Constitution, in fact, grants a maximum of
three session days within which to make the proper referral.[23]

In this case, the First Complaint was, by the House in plenary session, referred to the
Committee on Justice such referral having been included in the Order of Business of the
House. There appears to be no record of a debate on the propriety of the referral
obviously because the official records at that point do not show that an impeachment
complaint filed against the same impeachable officer has already been referred to the
Committee; and the one year period has not even started. It is precisely the referral of
the First Complaint that started the one-year period of the ban against the Second
Complaint. The subsequent impeachment complaint, or the Second Complaint, could no
longer be referred because the first referral was already on record and no further debate
is needed to prove the documented fact nor can such debate disprove the fact.

The observation that the Constitution affords the House a period of deliberation and
grants it a maximum period of three session days within which to make the proper
referral is of utmost significance. For one, it underscores the validity of my opinion that
while referral is a step subsequent to the filing of a complaint, a referral is not an
unavoidable consequence of such filing. I agree with Justice Carpio Morales that referral
is not a mechanical action. It is a deliberate act, and, may I add, with or without debate.
The House ought to have been cognizant of this considering that it adopted as its own
rules the Francisco definition of initiation of impeachment as filing and referral of the
complaint. It is during the three-day allowable period of pre-referral deliberation that the
House should decide which of the two complaints should be referred to the proper
committee. The First Complaint was referred after a decision that it was proper for
referral. This must be assumed, it having been done by no less than the House in
plenary. The assumption is now an unassailable fact since there was no recorded
objection to the referral. After that referral in due course, the one-year ban on another
initiation started. The referral of the Second Complaint subsequent to the first officially
recorded and undebatable referral is a constitutionally prohibited second initiation of an
impeachment proceeding against the same impeachable officer.

The clear conclusion cannot be avoided, proceeding as it does from the fact of first and
prior referral. Thus, the effort to avoid the fact. This cannot be done as adverted to
above, simply because a "simultaneous" referral, which did not happen and cannot
happen, was obviously resorted to in order to cure a constitutional defect. The
Constitution cannot be violated directly or indirectly.

Indeed, the existence of two complaints and of their separate referrals are further
pronounced by the facts that there were separate votings on the sufficiency in form of
the First and then the Second Complaints; and there were different numbers of votes for
and against the sufficiency in form of the two complaints. The same separate acts and
different results transpired in the determination of the sufficiency in substance of the
First and Second Complaints. So separate were the complaints that the possibility of
consolidation was even discussed at the committee level - a matter that can no longer
be done at that stage because of patent, even implicitly admitted, unconstitutionality.
Alternative Theory of Initiation

Perhaps foreseeing that Francisco will give them no refuge, the respondents have
alternatively asked for its abandonment in favor of the theory that an impeachment
proceeding is only initiated once the House of Representatives, as one body, acts on
either the report of the House Committee on Justice or, when applicable, on the
complaint filed by one-third (1/3) of its members. In brief, the initiation of an
impeachment proceeding ought to mean the entire proceedings in the House of
Representatives.

The respondents insist on equating the initiation of an impeachment proceeding with the
power given to the House of Representatives to "initiate all cases of impeachment" under
Section 3(1), Article XI of the Constitution.[24] Filing and referral could not be the
initiation of the proceeding because at that point the plenary has not yet determined
whether to file an impeachment case with the Senate or not. Unless and until such a
determination is made, an impeachment proceeding cannot be validly considered as
initiated.

Finally, the respondents expressed their fear that, should the Francisco formula be
upheld, frivolous impeachment complaints may be used to bar more meritorious
complaints against erring public officials.

These are desperate arguments.

The alternative position espoused by the respondents had already been dealt with quite
incisively in Francisco. In the main ponencia, Justice Carpio Morales dismissed the very
same position because it gives the term "initiated" found in Section 3(5), Article XI of the
Constitution, a meaning other than the actual commencement of an impeachment
proceeding.[25] The lengthy disquisition of Francisco provides:

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin,

to commence, or set going. As Webster's Third New International Dictionary of the
English Language concisely puts it, it means "to perform or facilitate the first action,"
which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated
during the oral arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The beginning or the initiation
is the filing of the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco
and Fuentebella says that impeachment is "deemed initiated" when the Justice
Committee votes in favor of impeachment or when the House reverses a contrary vote of
the Committee. Note that the Rule does not say "impeachment proceedings" are initiated
but rather are "deemed initiated." The language is recognition that initiation happened
earlier, but by legal fiction there is an attempt to postpone it to a time after actual
initiation. (Emphasis and underscoring supplied).

As stated earlier, one of the means of interpreting the Constitution is looking into the
intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be
pried from its records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many proposals
and, I think, these would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment proceedings starting
with initiation, action of the Speaker committee action, calendaring of report, voting on
the report, transmittal referral to the Senate, trial and judgment by the Senate.

xxxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment
on the floor. The procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment is the one approved by the
body.

As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the resolution. It
is not the body which initiates it. It only approves or disapproves the resolution. So, on
that score, probably the Committee on Style could help in rearranging these words
because we have to be very technical about this. I have been bringing with me The Rules
of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The
proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but
the Committee has already decided. Nevertheless, I just want to indicate this on record.

xxxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment of the Committee or to
override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned
on line 25 in the case of the direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of the
House of Representatives of the United States Congress. Thank you, Madam President.
[26] (Italics in the original; emphasis and underscoring supplied).

This amendment proposed by Commissioner Maambong was clarified and accepted by

the Committee on the Accountability of Public Officers.[27]
It is thus clear that the framers intended "initiation" to start with the filing of the
complaint. In his amicus curiae brief, Commissioner Maambong explained that "the
obvious reason in deleting the phrase "to initiate impeachment proceedings" as
contained in the text of the provision of Section 3 (3) was to settle and make it
understood once and for all that the initiation of impeachment proceedings starts with
the filing of the complaint, and the vote of one-third of the House in a resolution of
impeachment does not initiate the impeachment proceedings which was already initiated
by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution.[28]

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father

Bernas, who was also a member of the 1986 Constitutional Commission, that the word
"initiate" as used in Article XI, Section 3(5) means to file, both adding, however, that the
filing must be accompanied by an action to set the complaint moving.[29] [Italics,
emphasis and underscoring in the original].

In Francisco, this Court also clarified that the initiation of an impeachment proceeding is
vastly different from the initiation of an impeachment case by the House of
Representatives.[30] Thus:

During the oral arguments before this Court, Father Bernas clarified that the word
"initiate," appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

xxxx

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.(Emphasis supplied).

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The
object in the first sentence is "impeachment case." The object in the second sentence is
"impeachment proceeding." Following the principle of reddendo singula singulis, the
term "cases" must be distinguished from the term "proceedings." An impeachment case
is the legal controversy that must be decided by the Senate. Above-quoted first provision
provides that the House, by a vote of one-third of all its members, can bring a case to
the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of
impeachment. No other body can do it. However, before a decision is made to initiate a
case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A
proceeding must be "initiated." To initiate, which comes from the Latin word initium,
means to begin. On the other hand, proceeding is a progressive noun. It has a beginning,
a middle, and an end. It takes place not in the Senate but in the House and consists of
several steps: (1) there is the filing of a verified complaint either by a Member of the
House of Representatives or by a private citizen endorsed by a Member of the House of
the Representatives; (2) there is the processing of this complaint by the proper
Committee which may either reject the complaint or uphold it; (3) whether the resolution
of the Committee rejects or upholds the complaint, the resolution must be forwarded to
the House for further processing; and (4) there is the processing of the same complaint
by the House of Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-third of all the members. If
at least one third of all the Members upholds the complaint, Articles of Impeachment are
prepared and transmitted to the Senate. It is at this point that the House "initiates an
impeachment case." It is at this point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged with an impeachment "case"
before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House
proceeding and the beginning of another proceeding, namely the trial. Neither is the
"impeachment proceeding" initiated when the House deliberates on the resolution
passed on to it by the Committee, because something prior to that has already been
done. The action of the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or begins, when a verified
complaint is filed and referred to the Committee on Justice for action. This is the initiating
step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus
when a proposal reached the floor proposing that "A vote of at least one-third of all the
Members of the House shall be necessary... to initiate impeachment proceedings," this
was met by a proposal to delete the line on the ground that the vote of the House does
not initiate impeachment proceeding but rather the filing of a complaint does.[31] Thus
the line was deleted and is not found in the present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding
shall be initiated against the same official more than once within a period of one year," it
means that no second verified complaint may be accepted and referred to the
Committee on Justice for action. By his explanation, this interpretation is founded on the
common understanding of the meaning of "to initiate" which means to begin. He reminds
that the Constitution is ratified by the people, both ordinary and sophisticated, as they
understand it; and that ordinary people read ordinary meaning into ordinary words and
not abstruse meaning, they ratify words as they understand it and not as sophisticated
lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate
impeachment proceedings because Section 3 (1) says "The House of Representatives
shall have the exclusive power to initiate all cases of impeachment," This is a misreading
of said provision and is contrary to the principle of reddendo singula singulis by equating
"impeachment cases" with "impeachment proceeding."

From the records of the Constitutional Commission, to the amicus curiae briefs of two
former Constitutional Commissioners, it is without a doubt that the term "to initiate"
refers to the filing of the impeachment complaint coupled with Congress' taking initial
action of said complaint.[32] [Italics, emphasis and underscoring in the original].

I find no sufficient and cogent reason to deviate from Francisco. That the initiation of an
impeachment proceeding must be reckoned from the filing and subsequent referral of
the verified complaint is an interpretation of the Constitution anchored on the very intent
of its framers and the honored principles of statutory construction. It is, without a hint of
doubt, what the Constitution conveys.

Neither can Francisco simply be disregarded out of the fear that it will allow erring
officials - who, the respondents say, may just cause a frivolous complaint to be filed
ahead of more meritorious ones - to easily escape impeachment. This fear is not
grounded on reason. The Constitution already provides ample safeguards to prevent the
filing of sham impeachment complaints.

For one thing, impeachment complaints are required to be verified.[33] The

complainants are, under the pain of perjury, mandated to guarantee that the allegations
embodied in the complaint are true and within their personal knowledge.

Moreover, the requirement of verification is supplemented by another constitutional

safeguard, i.e. the condition that every impeachment complaint, unless filed by at least
one third (1/3) of the members of the House of Representatives, must be endorsed by a
member thereof.[34] The endorsement of a representative seeks to ensure that the
allegations of the complaint are at least, on first glance, serious enough to merit
consideration by the plenary.
And, to reiterate, a three-day pre-referral proceeding can be availed of by the House in
plenary to determine the propriety of referral. Needless to state, an unreferred
complaint does not initiate an impeachment proceeding.

Indeed, the Francisco doctrine is not as arbitrary or reckless as the respondents portray it
to be. In marking initiation of an impeachment proceeding from the filing of the verified
complaint and its referral to the proper committee, Francisco did not destroy the
effectiveness and integrity of the impeachment procedure. It only applied the
Constitution.

IN LIGHT OF ALL THE FOREGOING, I VOTE to GRANT the petition IN PART. The Second
Complaint against the petitioner is BARRED under Article XI, Section 3(5) of the
Constitution. Accordingly, the actions taken by the House Committee on Justice relative
to the Second Complaint, including the finding that it was sufficient in form and
substance, are hereby declared NULL and VOID.

--------------------------------------------------------------------------------
[1] Petitioner assumed as Ombudsman on 1 December 2005.

[2] The complaint was received by the Secretary General of the House of
Representatives

[3] The First Complaint was endorsed by representatives Arlene Bag-ao and Walden
Bello.

[4] The Fifteenth (15th) Congress formally opened its sessions on 26 July 2010.

[5] The Second Complaint was endorsed by representatives Neri Javier Colmenares,
Rafael V. Mariano, Teodoro A. Casio, Luzviminda C. Ilagan, Antonio L. Tinio and
Emerancia A. de Jesus.

[6] Representatives Marc Douglas C. Cagas IV and Fernejel G. Biron, both members of the
HCJ, initially called for the inhibition of Chairman Tupas, Jr. from the proceedings. As it
turned out, the father of Chairman Tupas, Jr., former Iloilo Governor Niel Tupas, Sr., was
the subject of a previous investigation of the petitioner and was, in fact, charged by the
latter with violations of Republic Act No. 3019 before the Sandiganbayan. The case
against Tupas, Sr. is still pending before the Sandiganbayan. Chairman Tupas, Jr.,
however, refused to inhibit from the proceedings and, instead, assured the other HCJ
members of his utmost impartiality.

[7] The petitioner, instead, caused her motion to be served personally upon each
member of the HCJ.

[8] The due process concerns are: (a) the lack of a published Rules of Procedure for
Impeachment cases; (b) the perceived partiality of Chairman Tupas, Jr.; (c) the apparent
haste with which the HCJ determined that both complaints were sufficient in form and
substance; and (d) the refusal of the HCJ to receive petitioner's motion for
reconsideration.

[9] 460 Phil. 830 (2003).

[10] Id. at 940.

[11] Congressional Record, Plenary Proceedings of the 15th Congress, First Regular
Session, House of Representatives, Vol. 1, No. 9, 11 August 2010.

[12] Id. at 13.

[13] Id.
[14] Id.

[15] TSN, Oral Arguments, 12 October 2010, p. 150.

[16] This complaint was filed by then Representatives Gilbert C. Teodoro, Jr. and Felix
William B. Fuentebella, and was accompanied by an endorsement of at least one-third
(1/3) of the members of the House of Representatives.

[17] This complaint was filed by former President Joseph E. Estrada and was endorsed by
then Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen.

[18] The other justices implicated in Estrada's complaint were then Associate Justices
Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T. Carpio, Renato C.
Corona, Jose C. Vitug and Leonardo A. Quisumbing.

[19] Supra note 9 at 940.

[20] Id.

[21] 2 RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p.

282 (1986).

[22] See Separate and Concurring Opinion of Associate Justice Angelina Sandoval-
Gutierrez in the Francisco case, supra note 9 at 983-1006.

[23] In the majority opinion in G.R. No. 193459.

[24] Section 3(1), Article XI of the Constitution provides: "The House of Representatives
shall have the exclusive power to initiate all cases of impeachment."

[25] Supra note 9 at 940.

[26] 2 RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES,

pp. 342-416 (1986).

[27] Id. at 416.

[28] Commissioner Maambong's Amicus Curiae Brief, p. 15 (submitted in the Francisco

case, supra note 9).

[29] Supra note 9 at 927-930.

[30] Id. at 932.

[31] 2 RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p.

416 (1986).

[32] Supra note 9 at 930-932.

[33] See CONSTITUTION, Article XI, Section 3(2).

[34] Id.

--------------------------------------------------------------------------------

CONCURRING OPINION
SERENO, J.

"No point is of more importance than that right of impeachment should be continued.
Shall any man be above justice? Above all, shall that man be above it who can commit
the most extensive injustice."

- George Mason, Delegate from Virginia[1]

I concur with the ponencia of Justice Conchita Carpio Morales particularly with respect to
the following rulings:

1. The expanded certiorari jurisdiction of the Court allows it to review the acts of
Congress and measure them against standards expressed in the Constitution. The power
to arrive at a determination of whether or not there has been a grave abuse of discretion
on the part of the Legislature in the exercise of its functions and prerogatives under the
Constitution is vested in the Court.

2. The instant Petition is not premature; it raises issues that are ripe for adjudication. The
Court is presented with "constitutional vagaries" that must be resolved forthwith - with
respect to the legal meaning of the simultaneous referral of two impeachment
complaints by the Speaker of the House of Representatives to its Committee on Justice
(public respondent Committee), and the extent of the legal need to publish the House
Rules of Procedure in Impeachment Proceedings.

3. There was no violation of petitioner Merciditas Gutierrez's right to due process of law.

4. The "one offense, one complaint" rule in ordinary rules of criminal procedure cannot
work to bar multiple complaints in impeachment proceedings, as the Constitution allows
indictment for multiple impeachment offenses.

5. The determination of the permissibility of the consolidation of impeachment

complaints is at the moment premature, conjectural or anticipatory; public respondent
Committee has yet to rule on the consolidation.

I diverge however, from the ponencia of the highly-respected Justice Conchita Carpio
Morales, on the reckoning point of the one-year time bar on subsequent impeachment
proceedings under the Constitution. I believe this Court, despite its several decisions on
impeachment, has not paid sufficient attention to the full implication of the inherently
discretionary character of the power of impeachment.

The Court has straitjacketed its interpretation of the one-year bar by failing to go beyond
the records of the deliberations of the Commissioners of the 1986 Constitutional
Commission. It has a duty to look beyond, when the records demonstrate that the
Commissioners were so inordinately pressed to declare a starting point for "initiation of
impeachment proceedings" during the deliberations to the unfortunate extent that they
appear to have forgotten the nature of the power of impeachment. I refer to the
deliberations during which Commissioner Maambong attempted to define the "initiation
of impeachment proceedings." The Commissioners were unable to recognize during the
deliberations that the entirety of steps involved in the process of impeachment is a mix
of clerical/ministerial and discretionary acts, even while the power of impeachment itself
is wholly discretionary. The apparent failure of one of the Commissioners to remember
the inherently discretionary nature of the power of impeachment while being
interpellated, such that he reckons the "initiation" to start with the filing of an
impeachment complaint, however, should not be followed by this Court's own failure to
look at the right place for an answer - at the essential character of the power of
impeachment. Reason is the foundation of all legal interpretation, including that of
constitutional interpretation. And the most powerful tool of reason is reflecting on the
essence of things. This is most especially needed when the Commissioners of the
Constitutional Commission failed at an important time to articulate an interpretation of
the constitution that is founded on reason; rather, they chose an interpretation that on
the surface seemed reasonable, but on examination, turns out to have been arbitrary
and highly problematic.

The Constitution provides: "No impeachment proceedings shall be initiated against the
same official more than once within a period of one year."[2]

The impeachment proceedings in the House of Representatives[3] are constitutionally

defined to consist of the following steps:

A. Filing of the Verified Complaint. A verified complaint for impeachment is filed by

either: (a) a Member of the House of Representatives; or (b) any citizen upon a resolution
of endorsement by any Member thereof.[4]

B. Inclusion in the Order of Business. After filing, the complaint shall be included in the
Order of Business within ten session days.[5]

C. Referral to the Committee. During the House Session when the complaint is
calendared to be taken up, the Speaker of the House shall refer the complaint for
impeachment to the proper committee within three session days.[6]

D. Committee Report. The Committee, after hearing, and by a majority vote of all its
Members shall submit its report to the House within sixty (60) session days from the
referral, together with the corresponding resolution.[7] The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
[8]

E. House Plenary Vote. A vote of a least one-third of all the Members of the House shall
be necessary either to affirm a favorable resolution with the Articles of Impeachment of
the Committee, or override its contrary resolution.[9]

F. Transmittal of Articles of Impeachment. In case the verified complaint or resolution of

impeachment is filed by at least one-third of all the Members of the House, the same
shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith
proceed.[10]

Since these are the only constitutionally described steps in the process of impeachment
in the House of Representatives, the starting point for the one-year bar must be among
these steps; the question is, where? Note that none of these steps is constitutionally
described as the "initiation of the impeachment proceedings." The parties to the case
have advocated their positions on this issue in their respective Memoranda.[11]

Petitioner Gutierrez espouses the view that the very "act of filing the complaint is the
actual initiation - beginning or commencement - of impeachment proceedings" that
would commence the one-year time-bar.[12]

On the other hand, public respondent Committee, through the Office of the Solicitor
General (OSG), argues that the "impeachment is a process beginning with the filing of a
complaint and terminating in its disposition by the vote of at least one-third of all the
members of the House"; and that the one-year period should be counted from the
plenary action of the House on the Committee's report.[13]

Meanwhile, private respondents Renato Reyes, Mother Mary John Mananzan, Danilo
Ramos, Atty. Edre Olalia, Ferdinand Gaite and James Terry Ridon (private respondents
Reyes) claim that the "term `initiated' therein takes place by the act of the House of
Representatives of transmitting the Articles of Impeachment to the Senate for the
conduct of the impeachment trial proceedings"; and, thus, the one-year period should
commence from the transmittal by the House of Representatives of the Articles of
Impeachment to the Senate.[14]
Finally, respondent-intervenor Feliciano R. Belmonte, Jr., as Speaker of the House,
theorizes that the better interpretation of the constitutional time bar should be reckoned
from the recommendation of the Committee to the House of Representatives.[15]

All the parties to the case, and the Court, are keenly aware of the latter's ruling in
Francisco v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.
[16] That ruling was categorical in stating that the impeachment proceeding is "initiated
or begins, when a verified complaint is filed and referred to the Committee on Justice for
action."[17] Considering the factual circumstances of the instant case, and the
experiences of the country with impeachment proceedings in the House since the
Francisco ruling, the Court is faced with a good opportunity to reexamine its earlier
disposition.

Petitioner Gutierrez's argument that the one-year time bar on a second impeachment
complaint should be counted from the mechanical act of filing the complaint alone[18] is
pregnant with a multitude of problems. Congress' exclusive power to initiate
impeachment cases would be effectively rendered inutile. This country's experience with
impeachment in the past decade has shown that pegging the time bar to the mechanical
act of filing has transformed impeachment into a race on who gets to file a complaint the
fastest - regardless of whether such a first complaint is valid, proper, substantial or
supported by evidence. Enterprising yet unscrupulous individuals have filed patently
sham, frivolous or defective complaints in the House in order to commence the one-year
period and thus bar the subsequent filing of "legitimate" complaints against the same
impeachable officer. In embracing the provisions of the 1987 Constitution, the Filipino
people certainly did not countenance a technical loophole that would be misused to
negate the only available and effective mechanism against abuse of power by
impeachable officers.

The opposite extreme propounded by private respondents Reyes that the period of the
time bar starts from the filing of the Articles of Impeachment in the Senate is likewise
untenable. Following their proposition, the one-year period will only commence when the
report of the Committee favoring impeachment is approved by the required vote of the
House, and the Articles of Impeachment are transmitted to the Senate. Consequently, if
there is no transmittal of the Articles of Impeachment, then there is no one-year time
bar. As a result, multiple parties may continue to file numerous complaints, until Articles
of Impeachment are transmitted by the House to the Senate.

This scenario of persistent filing until there is a transmittal of the Articles of

Impeachment is equally abhorrent to the constitutional prohibition on multiple,
successive and never-ending impeachment proceedings (not complaints). The machine-
gun approach to the filing of an impeachment complaint until there is a successful
transmittal to the Senate will greatly impede the discharge of functions of impeachable
officers, who are not given any refuge from such repetitive proceedings. Justice and the
efficient administration of government would be defeated, if the impeachment time bar
is made to commence solely from the favorable transmittal of the Articles of
Impeachment. The time consumed by impeachable officers fending off impeachment
proceedings is the same, regardless of the result - the time bar, therefore, must equally
apply to unsuccessful impeachment attempts voted down by the House.

Finally, the Court is confronted with the positions of public respondent Committee and
respondent-intervenor Belmonte as opposed to the Court's ruling in Francisco. In
Francisco, the time bar is counted from the acts of filing the impeachment complaint and
its referral to a Committee,[19] where the latter is a purely ministerial act of the Speaker
of the House. On the other hand, both public respondent Committee and respondent-
intervenor Belmonte propose that the period of one year begin from discretionary acts,
namely, from the submission of the Committee report on the complaint according to the
Speaker, and from the one-third House plenary action on the report according to the
public respondent Committee. With all due respect to the Court's ruling in Francisco, I
uphold the position of the public respondent Committee. The doctrine of separation of
powers in our theory of government pertains to the apportionment of state powers
among coequal branches; namely, the Executive, the Legislature and the Judiciary. In
establishing the structures of government, the ideal that the Constitution seeks to
achieve is one of balance among the three great departments of government --with each
department undertaking its constitutionally assigned task as a check against the
exercise of power by the others, while all three departments move forward in working for
the progress of the nation.[20] The system of checks and balances has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches.
[21]

The power of impeachment is the Legislature's check against the abuses of the
President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman.[22] Having been elected or appointed
for fixed terms, these impeachable officers enjoy security of tenure, which is intended to
enhance their capability to perform their governmental functions efficiently and
independently. However, their tenure, arising from either direct election by the people or
indirect appointment by the people's representatives, is not carte blanche authority for
them to abuse their powers. In the face of gross governmental abuse, the people have
not been made so powerless by the Constitution as to suffer until the impeachable
officer's term or appointment expires. The Legislature's impeachment power is the very
solution provided by the fundamental law to remove, in the interim, public officers who
have failed to uphold the public's trust. The Ombudsman is the public official
constitutionally tasked to investigate and prosecute complaints against other public
officials[23] except for impeachable officers and members of the national legislature. She
is continually required by the Constitution to be of recognized probity and independence,
[24] and must maintain this public trust during her term of office. Avoidance of the
prospect of impeachment is the negative incentive for the Ombudsman, and all other
impeachable officers, to keep that public trust.

Within the limitations set forth in the Constitution, impeachment is inarguably a political
act exercised by the Legislature, a political body elected by and directly accountable to
the people. This power "is lodged in those who represent the great body of the people,
because the occasion for its exercise will arise from acts of great injury to the
community, and the objects of it may be such as cannot easily be reached by an ordinary
tribunal."[25]

Full discretion is vested in Congress, both the House and the Senate, to determine
whether or not an officer should be impeached, subject only to constitutionally provided
limits. Even if the expanded certiorari jurisdiction allows the Court to review legislative
acts that contravene the express provisions of the Constitution, the Court cannot
supplant with its own determination, that of Congress in finding whether a public officer
has performed acts that are grounds for impeachment. The political character of the
process is underscored by a degree of imprecision in the offenses subject of
impeachment,[26] thus allowing Congress sufficient leeway to describe the acts as
impeachable or not.[27]

Since the power of impeachment is inherently discretionary, owing to its political

character, then the time bar limitation imposed by the Constitution on this legislative
discretion must likewise be counted from a discretionary, and not a ministerial, act. The
one-year period was meant to be a restraint on the discretionary power of impeachment;
otherwise, the Legislature would have been allowed to exercise that discretion at will
repeatedly and continuously, to the detriment of the discharge of functions of
impeachable officers. It is counterintuitive and illogical to place a limitation on
discretionary powers, which is triggered not by the exercise of the discretion sought to
be limited, but by a mere ministerial, ceremonial act perfunctorily performed preparatory
to such exercise.

We observe that the Constitution has placed time conditions on the performance of acts
(both discretionary and ministerial in nature) in pursuit of the House's exclusive power to
initiate impeachment proceedings.[28] These specific time conditions in the form of
session days, however, have primarily been imposed for the purpose of avoiding delays
or filibusters, which members of the House may resort to in order to prolong or even
defeat the impeachment process. Whether the step is discretionary or ministerial, the
constitutional deadlines for the execution of impeachment steps regulate only the speed
at which the proceeding is to take place.

In contrast, the rule against the initiation of more than one impeachment proceeding
against the same impeachable officer in a span of one year is a time constraint on the
frequency with which the discretionary act of impeachment is to be exercised. The time
bar regulates how often this power can be exercised by the House of Representatives.
The rationale is that the extreme measure of removal of an impeachable officer cannot
be used as Congress' perennial bargaining chip to intimidate and undermine the
impeachable officer's independence.

While each chamber of Congress is constitutionally empowered to determine its rules of

proceedings, it may not by its rules ignore constitutional restraints or violate
fundamental rights.[29] Further, there should be a reasonable relation between the
mode or method of proceeding established by the rule and the result that is sought to be
attained.[30]

I respectfully differ from my colleagues when in effect they rule that the one-year
limitation on a discretionary power is to begin from the ministerial act of the Speaker in
referring the impeachment complaint to the appropriate committee of the House of
Representatives. I cannot reconcile the incongruity between the constitutional largeness
of the power of impeachment - an inherently discretionary power lodged in the entire
Congress - and the controlling effect that a small act of the Speaker in referring a
complaint to the Committee has, over this large power of impeachment. Retired Justice
Serafin Cuevas, counsel for petitioner Gutierrez, goes so far as to characterize the
Speaker's ministerial referral of the complaint as merely "ceremonial in character":

JUSTICE SERENO:

And you are basically ... your contention if [I] understand it is that this is the initiation?
This is the act of initiating an impeachment complaint?

RET. JUSTICE CUEVAS:

Yes, we subscribed to the view or we uphold the view that upon the filing thereof, it was
already initiated because the referral to the Committee on Justice is only ceremonial in
character. The Secretary of Justice cannot do anything with it except to refer or not. Why
did it take him twenty two (22) days?[31] (Emphasis supplied)

Even on the part of the Speaker of the House, there is no exercise of discretion over the
referral of the complaint to the Committee on Justice.[32] The Speaker simply performs a
ministerial function under the Constitution.[33] The Speaker cannot evaluate the
complaint as to its sufficiency in form and substance. And even if there is a technical
defect in the impeachment complaint, the Speaker is duty-bound to refer the matter to
the committee within three session days from its inclusion in the Order of Business.
Moreover, as pointed out by Justice Carpio Morales, members of the House cannot even
raise issues against the propriety or substance of the impeachment complaint during the
referral, as in fact the only objection that can be entertained is the propriety of the
committee to which the complaint is referred. There is a dissonance on how the House
Speaker's clerical/ministerial act of referring the complaint can commence the time bar
on the discretionary power of the entire House to initiate an impeachment proceeding.

The stark incompatibility between a small ministerial act controlling the substantive right
of the House to initiate impeachment proceedings is viewed with concern by no less than
retired Justice Cuevas, counsel for petitioner Gutierrez, who agrees with me in this wise:

ASSOCIATE JUSTICE SERENO:

I am sure, sir. But let us now go to the real question of the constitutional right of the
House on impeachment and the clerical act of receiving impeachment complaints. Which
is superior and which should be given more weight, the substantive right of the House to
exercise its right to initiate impeachment complaints or is it the mere clerical act of
finding out which complaint on its face bears the stamp, the first the earliest of stamp?

RET. JUSTICE CUEVAS:

I am not aware of any law, Your Honor, that authorizes a mere clerk to do what you are
trying to tell us, Your Honor. It is the House, that is the responsibility of the House.

ASSOCIATE JUSTICE SERENO:

Yes, thank you.

RET. JUSTICE CUEVAS:

If they were designated by the Secretary General, the physical acceptance of the
complaint lies there.

ASSOCIATE JUSTICE SERENO:

Correct.

RET. JUSTICE CUEVAS:

But that acceptance does not automatically ...

ASSOCIATE JUSTICE SERENO:

Correct.

RET. JUSTICE CUEVAS:

... initiate the impeachment proceedings.

ASSOCIATE JUSTICE SERENO:

Thank you very much, that is exactly what I wanted to hear viz-a-viz the substantive
right of the House to initiate impeachment proceedings, this cannot be defeated by the
clerical act of accepting an impeachment complaint.

RET. JUSTICE CUEVAS:

I agree, Your Honor. (Emphasis supplied)[34]

Proceedings, as understood in law, include "any and all of the steps or measures adopted
or taken, or required to be taken in the prosecution or defense of an action, from the
commencement of the action to its termination, such as to the execution of the
judgment."[35] "Proceedings, both in common parlance and in legal acception, imply
action, procedure, prosecution. If it is a progressive course, it must be advancing; and
cannot be satisfied by remaining at rest."[36]

In Macondray & Co., Inc., v. Bernabe,[37] the Court ordered the payment of fees by the
custodian of the attached properties, since the plaintiff's recovery of the costs includes
any lawful fees paid by him or her for the "service of the summons and other process in
the action." The Court defined the word "process" in this wise:

As a legal term, process is a generic word of very comprehensive signification and many
meanings. In its broadest sense process, it is equivalent to, or synonymous with,
`proceedings' or procedure and embraces all steps and proceedings in a cause from its
commencement to its conclusion. Sometimes the term is also broadly defined as the
means whereby a court compels a compliance with its demands.[38] (Emphasis
supplied.)

Therefore, the term "impeachment proceedings" should include the entire gamut of the
impeachment process in the House - from the filing of the verified complaint, to its
referral to the appropriate committee, to the committee's deliberations and report, up to
the very vote of the House in plenary on the same report. It is only at the time that the
House of Representatives as a whole either affirms or overrides the Report, by a vote of
one third of all the members, that the initiation of the impeachment proceedings in the
House is completed and the one-year bar rule commences. This is because the plenary
House vote is the first discretionary act exercised by the House in whom the power of
initiating impeachment proceedings repose.

When the Court pegged, in Francisco, the time bar on the initiation of impeachment
proceedings to the filing of the complaint and its referral to the appropriate committee, it
may have failed to anticipate the actions of parties who would subvert the impeachment
process by racing to be the first to file sham and frivolous impeachment complaints.
These unintended consequences, which make a mockery of the power of impeachment,
justify a second look at the premises considered in Francisco.

Reckoning the beginning of the time bar from a ministerial and preparatory act, instead
of the exercise of the discretionary power of impeachment, tends to focus attention on
the procedural loopholes. Thus, impeachable officers subject of the proceedings, as well
as their counsel, abuse these technical gaps in the legal framework of impeachment.
Their purpose is to escape removal or perpetual disqualification despite the serious and
grave charges leveled against them. Questions on the number of complaints filed, the
date or even the time of filing, and whether the complaints have been consolidated or
even simultaneously referred become monkey wrenches that impede the entire process
and frustrate the mechanism of impeachment to the point of infeasibility.

As argued by public respondent Committee through retired Justice Vicente Mendoza

during oral argument,[39] these technical loopholes can be cured by rendering the
plenary vote of the entire House on the report of the committee as the starting point of
the one-year ban. The intensity of legal wrangling over the definition of the words
"proceedings" and "initiate" diminishes in significance if the Court is to focus its attention
on the sole, discretionary and exclusive power granted to the House as a whole body to
initiate all impeachment cases. Aside from the fact that the plenary vote pertains to the
very discretionary act of impeachment, which requires the vote of one-third of its
members, the difficulties inherent in pegging the period to ministerial acts are lessened,
if not eliminated. Let us look at some problems that this approach eliminates.

First, whether there is a single complaint or multiple complaints filed before the House or
taken up by the committee, the House in plenary will only vote once, in one
impeachment proceeding, on whether to approve or disapprove the committee's
resolution.

Second, the proposal also removes the undesired proclivity of parties to be the first to
file or the first to be referred, since the ban regulates not the speed of filing, but the
frequency of the exercise by the House plenary of voting on the impeachment
complaint/s.

Third, it makes no difference whether the complaint is filed and/or referred successively
or simultaneously, as was being deliberated upon in the public respondent Committee.
[40] The excessive emphasis on the physical time and date of filing or referral becomes
inconsequential, if not absurd.

Finally, the time limitation is reckoned from a discretionary act, which embraces a
deliberate, informed and debated process, and not from the ministerial act of a single
public officer. The one-year period from the plenary vote of the House on the committee
report eliminates even the possibility, however remote, that the Speaker of the House
and/or the Majority Floor Leader would include a sham impeachment complaint in the
Order of Business and refer the complaint to the Committee on Justice in just a single
session day, in order to bar any other subsequent impeachment complaint/s.

The plenary vote by the House on the committee report is definite, determinable, and
not ministerial; it is precisely the discretionary exercise of the power to initiate
impeachments. As elucidated by retired Justice Mendoza during the oral argument:

ASSOCIATE JUSTICE NACHURA:

Justice Mendoza, just two things, I agree with you that the impeachment proceeding is
really a process, is really a process. And I am open, my mind is at least open, to your
suggestion that the initiation should be the entire proceedings in the House of
Representatives. This would mean of course that the Committee would have prepared its
report and submitted the report to the House of representatives in plenary. That would
end the initiation, is that your position?

RET. JUSTICE MENDOZA:

Yes, Sir.

ASSOCIATE JUSTICE NACHURA:

Irrespective of the action taken by plenary do we have to await the action of the plenary
on the report of the Committee on Justice before we say that these (sic) have been
initiation on the impeachment?

RET. JUSTICE MENDOZA:

It is actually the action on the House because the power to initiate is vested in the House
not to the Committee of the House. Up to the submission of the report there is only
action by the Committee. Action by the House to initiate the proceedings is the action on
the Committee report. The point Mr. Justice is this, the House delegates the task of
screening good from bad complaints so that its time will not be wasted to a Committee
also and to protect the public officials from unnecessarily being made to face
impeachment proceedings. So what is given to the Committee is the task of investigating
and recommending action on the complaints. So unless action is taken therefore finally
by the House, the exclusive power to initiate impeachment proceedings has not been
discharged. (Emphasis supplied)[41]

Of course, there still exists the possibility that the complaining parties would file multiple
complaints at the 11th hour before the entire House votes on the committee report. This
last minute maneuver is presumably intended to delay the voting, until the belated
complaint is referred and deliberated upon by the committee within the number of
session days enumerated under the Constitution. However, the deadlines for the
committee report and the subsequent voting by the plenary should be counted from the
date of the complaint/s first referred, regardless of any subsequent complaints. Any
pending impeachment complaint will be immediately barred once the House votes on the
committee report. This rule will prevent the filing of subsequent complaints (albeit sham
or frivolous), which would continually reset the sixty-session day period and, thus, result
in the circumvention of the constitutional deadlines.

A party who has a legitimate grievance supported by evidence against an impeachable

officer will ordinarily not wait until the last minute to lodge the complaint. Ordinary
diligence and good faith dictate that a person who has sufficient proof of wrongdoing and
abuse against an impeachable officer will join and lend support to an impeachment
complaint that is already being deliberated upon by the House committee, at the soonest
possible time. Hence, it is natural that all complaints with valid grounds and sufficient
evidence will be collectively or separately raised at the first opportunity, in order that the
committee and eventually the House will be able to perform its deliberative function and
exercise discretion within the specified number of session days.

Contrary to the position of respondent-intervenor Belmonte,[42] the mere submission of

the committee report to the plenary is not a good reckoning point for the one-year
period. Undoubtedly, while the committee exercises a degree of discretion in deciding
upon and coming up with the report, as when it determines whether the impeachment
complaint/s is/are sufficient in form and substance,[43] this discretion is exercised by a
mere subset of the entire House, however, and is but preliminary. Although of persuasive
value, the recommendations of the committee, which is composed of approximately fifty-
five (55) members,[44] are not binding on the entire House in plenary, which counts two
hundred eighty-three (283) members.[45]

The power to initiate all cases of impeachment is an extraordinary exercise of the

sovereign people through its elected representatives to immediately remove those found
to have committed impeachable offenses.[46] Therefore, the power to initiate
impeachment proceedings is a power that is reposed upon the House of Representatives
as a whole body, in representation of the sovereign, and this power cannot be taken over
by a mere Committee.

Irrespective of the Committee's findings, the impeachment proceeding will rise or fall or
continue up to the impeachment case in the Senate on the basis of the one-third vote of
the House. Hence, the one-year period is a limitation on the discretionary power of the
entire House to initiate impeachment proceedings, and not on the committee's
deliberations or recommendations with respect to the impeachment complaint/s.

In summary, the following principles support the position that the time bar should be
counted from the House of Representative's plenary action on the report of the
Committee on Justice:

1. The time bar on impeachment proceedings cannot be counted from the filing of the
complaint; otherwise the absurdity of individuals racing to file the first complaint would
ensue, regardless of the complaint's propriety or substance.

2. The time bar must equally apply, whether the impeachment complaint is successful or
not.

3. The time bar, which is a limitation on the House's exclusive power to initiate
impeachment, must be counted from a discretionary act, not from a mechanical or
ministerial act, especially not from acts that trivialize the impeachment process.

4. The time bar can only be reckoned from the plenary action of the House on the report
of the committee (regardless of the outcome), since such action is done by the
constitutional body in which the power is vested, and not by a mere subset that makes a
preliminary finding that has only persuasive value.

Judicial review serves an affirmative function vital to a government of limited powers -

the function of maintaining a satisfactorily high public feeling that the government has
obeyed the law of its own Constitution and stands ready to obey it as it may be declared
by a tribunal of independence.[47]

In this instance, in exercising the power of judicial review over the exclusive and sole
power of the House to initiate impeachment cases, the Court must remember that it is
also performing a legitimating function - validating how the House exercises its power in
the light of constitutional limitations. The Court in the present constitutional dilemma is
tasked with doing what has been described as a "balancing act,"[48] in determining the
appropriate operation of the one-year time bar on the initiation of subsequent
impeachment proceedings vis--vis the need to allow Congress to exercise its
constitutional prerogatives in the matter of impeachment proceedings.
On the one hand, the undisputed raison d'tre of the time bar is to prevent the
continuous and undue harassment of impeachable officers, such as petitioner Gutierrez,
in a way that prevents them from performing their offices' functions effectively. On the
other hand, the protection afforded to petitioner and other impeachable officers against
harassment is not a blanket mechanical safety device that would defeat altogether any
complaint of wrongdoing, of which she and other impeachable officers may be accused.
Therefore, the power to initiate impeachment proceedings should not be so effortlessly
and expeditiously achieved by disgruntled politicians to pressure impeachable officers to
submission and undermine the latter's institutional independence. But neither should the
power of impeachment be too unreasonably restrictive or filled with technical loopholes
as to defeat legitimate and substantiated claims of gross wrongdoing.

I submit that a balance of these two interests is better achieved if the time bar for the
initiation of impeachment proceedings commences from the voting of the House on the
committee report. Briefly, a subsequent impeachment proceeding against the same
officer cannot be initiated until and unless one year lapses from the time the House in
plenary votes either to approve or to disapprove the recommendations of the committee
on impeachment complaint/s.

What the Court is deciding herein is merely the scope of the constitutional limits on the
power to initiate impeachment proceedings, and how the delineation of that scope would
affect the second Impeachment Complaint filed by private respondent Reyes. This Court
does not arrogate unto itself the power to determine the innocence or guilt of petitioner
Gutierrez with respect to the allegations contained in the impeachment complaints of
private respondents. Congress, the political branch of government, was entrusted with
the power of impeachment, specifically, "because the objectives and the questions to be
resolved are political."[49] In the Constitution, the impeachment power is an
extraordinary political tool to oust a public officer. It must, therefore, be exercised by
those whose functions are most directly and immediately responsive to the broad
spectrum of the Filipino people, rather than by the Courts.

In expounding on the rationale for excluding the power of impeachment from the courts,
Alexander Hamilton succinctly wrote:

... The awful discretion, which a court of impeachments must necessarily have, to doom
to honor or to infamy the most confidential and the most distinguished characters of the
community, forbids the commitment of the trust to a small number of persons.

These considerations seem alone sufficient to authorise a conclusion, that the Supreme
Court would have been an improper substitute for the Senate, as a court of
impeachments. ... [50]

On a final note, the issuance of the Status Quo Ante Order in this case was most
unfortunate. It was issued over the objections of Justices Antonio Carpio, Conchita Carpio
Morales, and myself. I believed then, as I believe now, that the Court, in issuing the said
order, was overly intrusive with respect to a power that does not belong to it by
restraining without hearing a co-equal branch of Government. This belief was made more
acute by the fact that the order was voted upon in the morning of 14 September 2010,
without the benefit of a genuinely informed debate, since several members of the Court,
myself included, had not yet then received a copy of the Petition. No one should
henceforth presume to tell the House of Representatives that any form of restraining
order is still in effect and thereby seek to extend the effectivity of the Status Quo Ante
Order. This is the legal import of the majority Decision.

Premises considered, I vote to DISMISS the Petition in its entirety, and, consequently, the
Status Quo Ante Order is immediately lifted.
--------------------------------------------------------------------------------
[1] The Debates in the Federal Convention of 1787 which Framed the Constitution of the
United States of America, Reported by James Madison (International Edition), Gaillard
Hunt and James Brown N. Scott (ed.) 1970 reprint, at 290.

[2] CONSTITUTION, Art. XI, Sec. 3 (4).

[3] Id, Sec. 3 (1).

[4] Id, Sec. 3 (2). The verified complaint is filed with the Office of the Secretary General
of the House of Representatives. (15th Congress Rules of Procedure in Impeachment
Proceedings, Rule II, Section 3)

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] CONSTITUTION, Art. XI, Sec. 3 (3).

[10] Id. Sec. 3 (4).

[11] Private respondents Risa Hontiveros-Baraquel, Danilo D. Lim, Felipe Pestao and
Evelyn Pestao (private respondents Baraquel) argue that the one-year time-bar rule
under the Constitution is inapplicable to the first Impeachment Complaint that they filed
against petitioner Gutierrez. (Private respondent Baraquel's Memorandum dated 27
October 2010, at 5-6)

[12] Petitioner Gutierrez's Memorandum dated 21 October 2010, at 27-40.

[13] Public respondent's Memorandum dated 26 October 2010, at 61-85. See also public
respondent' Reply Memorandum dated 15 November 2010, at 21-34.

[14] Private respondents Reyes's Memorandum dated 26 October 2010, at 26-44.

[15] Respondent-intervenor Belmonte's Memorandum for the Intervenor Ex Abundanti

Cautela dated 27 October 2010, at 19-25.

[16] G.R. Nos. 160261, 160262-63, 160277, 160292, 160295, 160310, 160318, 160342-
43, 160360, 160365, 160370, 160376, 160392, 160397, 160403, 160405, 10 November
2003, 415 SCRA 44.

[17] Id. at 169.

[18] "The filing of an impeachment complaint constitutes the only true and actual
initiation of impeachment proceedings. This operative and immutable fact cannot be
downplayed or trivialized as being the mere solitary act which `begins the initiation
process.' That the filing of the complaint admittedly `begins the process of initiation' only
underscores the plain and inescapable fact that it is the very start, the very inception,
the very origin of an impeachment proceeding." (Petitioner Gutierrez's Consolidated
Reply dated 15 October 2010, at 15)

[19] "Having concluded that the initiation takes place by the act of filing and referral or
endorsement of the impeachment complaint to the House Committee on Justice or, by
the filing by at least one-third of the members of the House of Representatives with the
Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear.
Once an impeachment complaint has been initiated, another impeachment complaint
may not be filed against the same official within a one year period." (Francisco, supra
note 15, at 169)

[20] Carpio Morales, Dissenting Opinion, De Castro v. Judicial and Bar Council, G.R. No.
191002, 191032, 191057, 191149, 191342, 191420 & A.M. No. 10-2-5-SC, 20 April 2010.

[21] Neri v. Senate Committee on Accountability of Public Officers and Investigations,

G.R. No. 180643, 04 September 2008, 549 SCRA 77.

[22]CONSTITUTION, Art. XI, Sec. 2.

[23] CONSTITUTION, Art. XI, Sec. 12.

[24] Id, Sec. 8.

[25] Labovitz, John R., Presidential Impeachment, 20 (1978).

[26] The grounds for impeachment are culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. (Constitution,
Art. XI, Sec. 2)

[27] Although some of the grounds for impeachment are specifically defined under penal
laws (treason, bribery, graft and corruption), those laws and their concomitant
jurisprudence are mere guides for the members of Congress and are not exactly bound
to these definitions, given the discretionary power vested in them.

[28] The Constitution provides a specific time conditions for several acts in the
impeachment process, namely: (a) inclusion of the impeachment complaint in the Order
of Business (ten session days); (b) referral to the Committee (three session days); (c)
report of the Committee (sixty session days); and (d) calendar of the Committee report
to the plenary (ten session days).

[29] Arroyo v. De Venecia, G.R No. 127255, 14 August 1997, 277 SCRA 268 citing U.S. v.
Ballin, Joseph & Co., 144 U.S. at 5.36 L.Ed. at 324-25.

[30] Id.

[31] TSN, 05 October 2010, at 119-120.

[32] "aa. Justice, 55 Members. All matters directly and principally relating to the
administration of justice, the Judiciary, the practice of law and integration of the Bar,
legal aid, penitentiaries and reform schools, adult probation, impeachment proceedings,
registration of land titles, immigration, deporation, naturalization, and the definition of
crimes and other offenses punishable by law and their penalties." (House Rules of
Procedure, Rule IX The Committees, Sec. 27 [aa])

[33] "A purely ministerial act or duty is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done." (Callejo, Concurring Opinion, Lambino v. COMELEC, G.R. No.
174153 & 174299, 25 October 2006, 505 SCRA 160, citing Codilla, Sr. v. De Venecia, G.R.
No. 150605, 10 December 2002, 393 SCRA 639)

[34] TSN, 05 October 2010, at 142-143.

[35] 1 C.J.S. Actions 1(h)(1)(a), at 955.

[36] 34 WORDS AND PHRASES 142 (1957), citing Beers v. Haughton, 34 U.S. 329, 368, 9
Pet. 329, 368, 9 L.Ed. 145.

[37] G. R. No. L-45410, 67 Phil. 661(1939).

[38] Macondray & Co., Inc., v. Bernabe, 67 Phil. 661 (1939), citing 50 C.J., 441; cf.
Philippine Law Dictionary, 748 (Federico B. Moreno ed., 3rd ed. 1988).

[39] TSN, 12 October 2010, at 88-90.

[40] "Rep. Datumanong raised again the issue of having two impeachment complaint
referred to the Committee. According to him, the journal of the House on August 11
reflects the successive, and not simultaneous, referral to the two complaints to the
Committee. This position was later reiterated by Re. Rufus Rodriguez, who stated that it
is a physical impossibility to refer two complaints to the Committee at exactly the same
time. Rep. Neptali Gonzales II answered Rep. Datumanong's query, and maintained that
in the same journal, both complaints were referred to the Committee on Justice at
exactly the same time, which shows the intention of the House to refer the complaints
simultaneously and not successively. Rep. Gonzales also stated that there is nothing in
the Constitution or the Rules on Impeachment that prevents the Committee from
consolidating the two complaints against an impeachable officer." (Minutes of the
Meeting of the Committee on Justice, 07 September 2010 at 5; cf. petitioner Gutierrez's
Compliance and Manifestation dated 30 September 2010)

[41] TSN, 12 October 2010, at 133-135.

[42] "102. The moment when an impeachment is `initiated' therefore is a process that
starts from the filing up until the recommendation of the House Committee on Justice to
the House of Representatives. It is still a process and a continuum, but it is a process that
allows democratically elected forums to weigh in." (Respondent-intervenor Belmonte's
Memorandum dated 27 October 2010, at 22)

[43] "Section 4. Determination of Sufficiency in Form and Substance. - Upon due referral,
the Committee on Justice shall determine whether the complaint is sufficient in from and
substance. If the committee finds that the complaint is insufficient in form, it shall return
the same to the Secretary General within three (3) session days with a written
explanation of the insufficiency. The Secretary General shall return the same to the
complaint(s) together with the committee's written explanation within three (3) session
days from receipt of the committee resolution finding the complaint insufficient in form."

"Should the committee find the complaint sufficient in form, it shall then determine if the
complaint is sufficient in substance. The requirement of substance is met if there is a
recital of facts constituting the offense charged and determinative of the jurisdiction of
the committee. If the committee finds that the complaint is not sufficient in substance, it
shall dismiss the complaint and shall submit its report as provided hereunder." (House
Rules of Procedure in Impeachment Proceedings, Sec. 4)

[44] House Rules of Procedure, Rule IX (The Committees), Sec. 27 (aa).

[45] (Last accessed on 24 January 2011)

[46] "On a more fundamental level, the impeachment power is, in fact, an exercise of
sovereignty. It is a choice by the representatives of the people to immediately remove
those unfit for public service. Impeachment involves conviction and removal of
government officers of the highest level and, hence, is an extreme measure. So, it is but
appropriate that it is the Congress - the direct representatives of the people - which
should wield the power of impeachment. Therefore, the power to `initiate' impeachment
proceedings may not be exercised by a lone congressman or by a citizen by the sheer
act of filing an impeachment complaint." (Tamano, Adel A., Handbook on Impeachment
under the 1987 Constitution [1st Ed., 2004], at 21)

[47] CHARLES L. BLACK, JR., THE PEOPLE AND THE COURT: JUDICIAL REVIEW IN A
DEMOCRACY, 86 (1960).
[48] "... So, that is why I am saying now that we should not only consider the rights of
the accused we should also consider the rights of the State. We should try to do a
balancing act such that we will come out with a favorable decision which is fair to both
parties." (Justice Carpio Morales, TSN, 05 October 2010, at 335)

[49] JOHN R. LABOVITZ, PRESIDENTIAL IMPEACHMENT 251 (1978).

[50] FEDERALIST No. 65, at 439-45 (07 March 1788).

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-45460 February 25, 1938

THE MUNICIPAL COUNCIL OF SAN PEDRO, LAGUNA, ET AL., applicants-appellants,

vs.
COLEGIO DE SAN JOSE, INC., ET AL., oppositors-appellees.

Juan S. Rustia for appellants.

Araneta, Zaragoza and Araneta for appellee Colegio de San Jose, Inc.
Francisco Alfonso for appellee Young.

IMPERIAL, J.:

This is an appeal from the order of the Court of First Instance of Laguna of October 29,
1936, which denied the applicants motion questioning the appearance and intervention
in the case of the oppositors Colegio de San Jose and Carlos Young, and from the
resolution of the 30th of the same month which denied the petition for escheat filed by
the said petitioners, with the costs against the latter.

This case was commenced in the said by a petition filed by the petitioners in behalf of
the municipality of San Pedro, Province of Laguna, wherein they claim the Hacienda de
San Pedro Tunasa by the right of escheat. The Colegio de San Jose, Inc., appeared
specially and assailed the petition upon the grounds that the court has no jurisdiction to
take cognizance and decide the case and that the petition does not allege sufficient facts
to entitle the applicants to the remedy prayed for; and asked that the petition be finally
dismissed. Carlos Young intervened and filed a motion asking for the dismissal or the
petition upon the ground that the Code of Civil Procedure, under which the same was
filed, is not applicable because it was not yet in force when the original owner of the
hacienda died, which was in April, 1596, and that the petition was irregularly docketed as
the applicants had paid at the docket fees which the clerk of court should collect.
Subsequently the attorneys for both parties filed another motions of minor importance,
almost all of which contains the arguments advanced in support of their contentions. On
October 29, 1936, the court overruled the objection to the appearance and intervention
in the case by the Colegio de San Jose and Carlos Young, entering the order which is one
of those appealed from. And on the 30th of the same moth the court entered the
resolution, also appealed from, dismissing the petition for escheat, with the costs to the
petitioners.

The petitioners attribute to the court the following errors: "(1) In overruling the objection
of the appellant of September 2, 1936, and in not excluding the appellees Carlos Young
and Colegio de San Jose, Inc., from these proceedings. (2) In sustaining definitely the
appellees' petitions to dismiss, without previous hearing and in derogation of the right to
amend in any case. (3) In improperly and unseasonably taking judicial notice of certain
facts in other judicial records to reinforce the appealed resolutions, and in erroneously
distorting those facts judicially taken notice of. (4) In holding that the municipality of San
Jose has neither right standing to file a petition for escheat; that the petition does not
state facts sufficient a cause of action and that the same does not lie, and that the Court
of First Instance of Laguna is without jurisdiction to take cognizance of and decide said
petition. (5) In finally dismissing the petition upon the dilatory exceptions thereto, and
the ordering the payment of costs when no hearing has yet taken place."

1. The sworn petition which gave rise to the proceeding is based upon the provisions of
section 750 and 751 of the Code of Civil Procedure, the English text of which
reads:1vvphl.nt

SEC. 750. Procedure when person dies intestate without heirs. When a person dies
intestate, seized of real or personal property in the Philippines Islands, leaving no heir or
person by law entitled to the same, the president and municipal council of the
municipality where the deceased last resided, if he was an inhabitant of these Islands, or
of the municipality in which he had estate, if he resided out of the Islands, may, on
behalf of the municipality, the file a petition with the Court of First Instance of the
province for an inquisition in the premises; the court shall there upon appoint a time and
place of hearing, and deciding on such petition, and cause a notice thereof to be
published in some newspaper of general circulation in the province of which the
deceased was last an inhabitant, if within the Philippines Island, and if not, some
newspaper of general circulation in the province in which he had estate. The notice shall
recite the substance of the facts and request set forth in the petition, the time and place
at which persons claiming the estate may appear and be heard before the court, and
shall be published at least six weeks successively, the last of which publication shall be
at least six weeks before the time appointed by the court to make inquisition.

SEC. 751. Decree of the court in such case. If, at the time appointed for the that
purpose, the court that the person died intestate, seized of real or personal property in
the Islands, leaving no heirs or person entitled to the same and no sufficient cause is
shown to the contrary, the court shall order and decree that the estate of the deceased
in these Islands, after the payment of just debts and charges, shall escheat; and shall
assign the personal estate to the municipality where he was last an inhabitant in the
Islands, and the real estate to the municipality in which the same is situated. If he never
was a inhabitant of the Islands, the whole estate may be assigned to the several
municipalities where the same is located. Such estate shall be for the use of schools in
the municipalities, respectively, and shall be managed and disposed or by the municipal
council like other property appropriated to the use of schools.

Accordingly to the first of the said sections, the essential facts which should be alleged in
the petition, which are jurisdiction because they confer jurisdiction upon the Court of
First Instance, are: That a person has died intestate or without leaving any will; that he
has left real or personal property; that he was the owner thereof; that he has not left any
heir or person who is by law entitled to the property; and that the one who applies for
the escheat is the municipality where deceased had his last residence, or in case should
have no residence in the country, the municipality where the property is situated.

The following section provides that after the publications and trial, if the court finds that
the deceased is in fact the owner of real and personal property situated in the country
and has not left any heirs or other person entitled thereto, it may order, after the
payments of debts and other legal expenses, the escheat, and in such case it shall
adjudicate the personal property to the municipality where the deceased had his last
place of residence and the real property to the municipality or municipalities where they
are situated.

Escheat, under sections 750 and 751, is a proceeding whereby the real and personal
property of a deceased person become the property of the State upon his death without
leaving any will or legal heirs (21 C.J., sec. 1, p. 848; American L. & T. Co. vs. Grand River
Co., 159 Fed., 775; In re Miner, 143 Cal., 194; Johnston vs. Spicer 107 N.Y., 185; Wright
vs. Methodist Episcopal Church, Hoffm. [N.Y.], 201; In re Linton's, 198 Pa., 438; State vs.
Goldberg, 113 Tenn., 298). It is not an ordinary action contemplated by section 1 of the
Code of Civil Procedure, but a special proceeding in accordance with the said section and
Chapter XXXIX, Part II, of the same Code. The proceeding, as provided by section 750,
should be commenced by petition and not by complaint.

In a special proceeding for escheat under section 750 and 751 the petitioner is not the
sole and exclusive interested party. Any person alleging to have a direct right or interest
in the property sought to be escheated is likewise and interest and necessary party and
may appear and oppose the petition for escheat. In the present case the Colegio de San
Jose, Inc., and Carlos Young appeared alleging to have a material interest in the Hacienda
de San Pedro Tunasa; and the former because it claims to be the exclusive owner of the
hacienda, and the latter because he claim to be the lessee thereof under a contract
legality entered with the former. In view of these allegations it is erroneous to hold that
the said parties are without right either to appear in case or to substantiate their
respective alleged right. This unfavorably resolves the petitioners' first assignment of
error.

2. The final dismissal of the petition for escheat decreed by the court is assigned by the
petitioners as the second error committed by it upon the contention that the demurrer,
to which amount the motions for dismissal, is not a pleading authorized by law in this
kind of proceeding and because, in any event, the court should have given them an
opportunity to amend the petition.

Chapter XXXIX of the Code of Civil Procedure, relative to the escheat of properties, does
not in fact authorize the filing of a demurrer to the petition presented for that purpose,
and section 91 and 99 permitting the interposition of demurrers to the complaint and
answer, respectively, are not applicable to special proceedings. But is no reason of a
procedure nature which prevents the filing of a motion to dismiss based upon any of the
grounds provided by law for a demurrer to a complaint. In such case, the motion to
dismiss pays the role of a demurrer and the court should resolve the legal question
raised therein. When, for instance, a petition for escheat does not state facts which
entitle the petitioner to the remedy prayed from and even admitting them hypothetically
it is clear that there are nor grounds for the court to proceed to the inquisition provided
by law, we see no reason to disallow an interest party from filing a motion to dismiss the
petition which is untenable from all standpoints. And when the motion to dismiss is
entertained upon this ground, the petition may be dismissed unconditionally and the
petitioner is not entitled, as in the case of a demurrer, to be afforded an opportunity to
amend his petition.

3. The petitioners assign as third error the judicial notice which the court took of the
complaint filed in civil case No. 6790, docketed and pending in the same court, wherein
the petitioner recognized the personality Colegio de San Jose, Inc., and Carlos Young and
the latters' interest in said action of interpleader and in the Hacienda de San Pedro
Tunasan which is the same subject matter of the instant proceedings.

In general, courts are not authorized to take judicial notice, in the adjudication of cases
pending before them, of the contents of the records of the other cases, even when such
cases have been tried or are pending in the same court, and notwithstanding the fact
that both cases may have been heard or are actually pending before the same judge.
(U.S. vs. Claveria, 29 Phil., 527.) The rule is squarely applicable to the present case,
wherefore, we hold that the assignment of error is tenable.

4. In the appealed resolution the court held that the municipality of San Pedro,
represented by the petitioners, has no personality to institute the petition for escheat
that the latter does not state sufficient facts, and that the court is without jurisdiction
either to take cognizance of the proceeding or to grant the remedy sought. These legal
conclusions are the subject matter of the fourth assignment of error.

According to the allegations of the petition, the petitioners base their right to the escheat
upon the fact that the temporal properties of the Father of the Society of Jesus, among
them, the Hacienda de San Pedro Tunasan, were confiscated by order of the King of
Spain and passed from then on the Crown of Spain. The following allegations of the
petition are important and specific and clearly the theory maintained by the petitioners:
"11. As a result of the perpetual expulsion of the Jesuits in their dominions, the King also
decreed the confiscation of all their properties, estate, rents, foundation, etc., in favor of
the Crown of Spain, and the order of the King was thus complied with here in the
Philippines. The Hacienda de San Pedro Tunasa from then on passed to the Crown of
Spain under the administration and management on its respective here, the Governor-
General of the Philippines Islands. 12. As a result of the war between Spain and the
United States, the latter acquired by way of transfer, all the properties of the Crown of
Spain in the Philippines, under articles III and VIII of the Treaty of Peace entered into in
Paris on December 10, 1989, and among which properties was included the Hacienda de
San Pedro Tunasan. 13. That the said hacienda thereafter passed to the Government of
the Philippines Islands by virtue of the Act of the United States Congress of July 1, 1992
(Philippine Bill), by mere administration for the benefit of the inhabitant of the
Philippines; and there after, under the Tydings-McDuffie law approved by the same
Congress on March 24, 1934, section 5, the United States, in turn, have ceded to the
Commonwealth of the Philippines, upon its inauguration, all the properties, estate, etc.,
ceded by Spain to the United States as above stated, among them being the Hacienda
de San Pedro Tunasan. Said Commonwealth was inaugurated on November 15, 1935."

If the hacienda de San Pedro Tunasan,, which is the only property sought to be escheated
and adjudicated to the municipality of San Pedro, has already passed to the ownership of
the Commonwealth of the Philippines, it is evident that the petitioners cannot claim that
the same be escheated to the said municipality, because it is no longer the case of real
property owned by a deceased person who has not left any heirs or person who may
legality claim it, these being the conditions required by section 750 and without which a
petition for escheat should not lie from the moment the hacienda was confiscated by the
Kingdom of Spain, the same ceased to be the property of the children of Esteban
Rodriguez de Figueroa, the Colegio de San Jose or the Jesuit Father, and became the
property of the Commonwealth of the Philippines by virtue of the transfer under the
Treaty of Paris, alleged in the petition. If the municipality of San Pedro believes that it has
some other right to the hacienda, distinct from the escheat relied upon in its petition
which gave rise to this proceeding, it should bring the proper action, but it cannot avail
itself successfully of the remedy provided by section 750 of the Code of Civil Procedure.
We, therefore, hold that the court did not commit the error assigned in ruling that the
petition does not allege sufficient facts justifying the escheat of the hacienda in favor of
the municipality of San Pedro and in finally dismissing the same. Having reached this
conclusion we do not believe it necessary to go into further considerations regarding the
personality of the municipality of San Pedro and the court's lack of jurisdiction.

5. The last assignment of error does not require any further consideration. The questions
raised therein have already been passed upon in the preceding considerations, with the
exception of the order to pay costs. With respect thereto, there is no reason why they
should not be taxed against the petitioners, they being defeated party (section 487,
Code of Civil Procedure). That no trial was had is not a bar to the imposition of costs
under the provisions of section 492.

For the foregoing reasons, the appealed order and resolution are affirmed, with the costs
of this instance against the petitioners and appellants. So ordered.

Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 164024 January 29, 2009

LUIS B. MANESE, ANTONIA ELLA, HEIRS OF ROSARIO M. ORDOEZ, represented by CESAR
ORDOEZ, SESINANDO PINEDA and AURORA CASTRO, Petitioners,
vs.
SPOUSES DIOSCORO VELASCO and GLICERIA SULIT, MILDRED CHRISTINE L. FLORES
TANTOCO and SYLVIA L. FLORES, Respondents.

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision1 dated April 28, 2004 and the Resolution2 dated
June 22, 2004 of the Court of Appeals in CA-G.R. CV No. 68934. The appellate court had
affirmed the Order3 dated June 15, 2000 of the Regional Trial Court (RTC) of Lucena City,
Branch 59, in Civil Case No. 99-129, dismissing the petitioners complaint for annulment
of title and damages against the respondents.

The subject matter of the controversy is the alleged foreshore land with an area of about
85,521 square meters, fronting Tayabas Bay in Guisguis, Sariaya, Quezon.4

On October 13, 1971, respondent Dioscoro Velasco was issued Original Certificate of Title
No. P-167835 covering said property by the Register of Deeds of Quezon Province, based
on Homestead Patent No. 133300. On March 22, 1977, Velasco sold the property to
respondent Sylvia Flores, and Transfer Certificate of Title (TCT) No. T-1609236 was issued
in her name. On January 4, 1981, the property was sold by Flores to Mildred Christine
Flores-Tantoco and TCT No. T-1777357 was issued in the latters name. Later, the
property was divided into seven lots and TCT Nos. T-177777, T-177778, T-177779, T-
177780, T-177781, T-177782, and T-177783 were issued in the name of Mildred Christine
Flores-Tantoco. On January 18, 1992, the lots covered by TCT Nos. T-1777808 and T-
1777819 were sold back to Flores such that TCT No. T-27811210 and TCT No. 27811011
were issued in her name.

Adjacent and contiguous to the alleged foreshore land is the agricultural land owned by
petitioners.

On August 31, 1999, the petitioners filed a Complaint12 for Annulment of Title and
Damages against respondents before the RTC of Lucena City. They alleged that the
issuance of the homestead patent and the series of transfers involving the same
property were null and void. They further alleged that they applied for lease of the
foreshore land and the government had approved in their favor Foreshore, Reclaimed
Land or Miscellaneous Lease Application. Petitioners claimed that they were in open,
continuous, exclusive and notorious possession and use of said foreshore land since
1961. They stated that they had introduced improvements thereon and planted coconut
seedlings (which had grown up into coconut trees) as well as other fruit-bearing trees
and plants. They added that they had subleased the land to several tenants.

Petitioners averred that Dioscoro Velasco was not qualified to become a grantee of a
homestead patent since he never occupied any portion nor introduced any
improvements on the land. They claimed that Velasco was issued a homestead patent
because he committed fraud, misrepresentation, and falsification in connivance with
employees of the Bureau of Lands. They argued that the sale between Velasco and Flores
was invalid because it was not approved by the Secretary of Agriculture and Natural
Resources as required under Commonwealth Act No. 141, otherwise known as "The
Public Land Act."13 Hence, they claimed that the sale by Flores to Tantoco was likewise
invalid.

On December 2, 1999, respondents moved to dismiss14 the complaint on the following

grounds: (1) petitioners do not have the legal personality to file the complaint since the
property forms part of the public domain and only the Solicitor General could bring an
action for reversion or any action which may have the effect of canceling a free patent
and the corresponding certificate of title issued on the basis of the patent; (2) the sale of
the property by Velasco to Flores is valid even without approval of the Secretary of
Agriculture and Natural Resources as the required approval may be obtained after the
sale had been consummated; (3) the certificate of title issued to Velasco can no longer
be reviewed on the ground of fraud since a homestead patent registered in conformity
with the provisions of Act No. 49615 partakes of the nature of a certificate issued in a
judicial proceeding and becomes indefeasible and incontrovertible upon the expiration of
one year from its issuance; and (4) petitioners action is barred by laches since for
almost 28 years, they failed to assert their alleged right over said property.

On June 15, 2000, the RTC granted the Motion to Dismiss and ruled that petitioners do
not have the legal personality to file the complaint. It held that the government, not
petitioners, is the real party in interest and, therefore, only the Solicitor General may
bring the action in court. The dispositive portion of the RTCs Order states:

WHEREFORE, the instant Motion is granted and the plaintiffs[] complaint dismissed.

SO ORDERED.16

The Court of Appeals affirmed the RTCs Order, disposing as follows:

WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit. The Order
dated June 15, 2000 of the Regional Trial Court (RTC), Branch 59, Lucena City dismissing
plaintiffs-appellants complaint for annulment of title with damages is AFFIRMED and
UPHELD.

SO ORDERED.17

Hence, this petition.

Petitioners raise the following issue for our resolution:

[WHETHER OR NOT] THE COURT OF APPEALS ERRED IN DISMISSING THE APPEAL AND IN
AFFIRMING AND UPHOLDING THE ORDER OF DISMISSAL OF THE REGIONAL TRIAL COURT
OF LUCENA, BRANCH 59 THAT THE PETITIONERS DO NOT HAVE THE LEGAL PERSONALITY
TO INSTITUTE THE COMPLAINT FOR CANCELLATION OF OCT NO. P-16789 ISSUED
PURSUANT TO HOMESTEAD PATENT NO. 133300 IN THE NAME OF DIOSCORO VELASCO
AND THE TRANSFER CERTIFICATES OF TITLES SUBSEQUENTLY ISSUED IN FAVOR OF
S[Y]LVIA L. FLORES AND MILDRED CHRISTINE FLORES-TANTOCO.18

Stated simply, the sole issue in this case is whether or not petitioners are real parties in
interest with authority to file a complaint for annulment of title of foreshore land.

Petitioners concede that under Section 101 of Commonwealth Act No. 141,19 only the
Solicitor General or the officer acting in his stead may institute all actions for reversion in
the proper courts. However, they invoke the principle of equity, arguing that equity and
social justice demand that they be deemed real parties in interest and given a right to
present evidence showing that the land titles of respondents are void.20 Respondents,
on the other hand, reiterate that petitioners are not real parties in interest because they
do not represent the State.21

After due consideration of the submissions and arguments of the parties, we are in
agreement that the instant petition lacks merit.

Section 2, Rule 3 of the 1997 Rules of Civil Procedure provides:

SEC. 2. Parties in interest. - A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of the
suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted
or defended in the name of the real party in interest. (Emphasis supplied.)

It is admitted by both parties that the subject matter of controversy is foreshore land,
which is defined as that strip of land that lies between the high and low water marks and
is alternatively wet and dry according to the flow of the tides. It is that part of the land
adjacent to the sea, which is alternately covered and left dry by the ordinary flow of
tides. It is part of the alienable land of the public domain and may be disposed of only by
lease and not otherwise. Foreshore land remains part of the public domain and is outside
the commerce of man. It is not capable of private appropriation.22

Section 101 of Commonwealth Act No. 141 provides:

All actions for the reversion to the Government of lands of the public domain or
improvements thereon shall be instituted by the Solicitor General or the officer acting in
his stead, in the proper courts, in the name of the Republic of the Philippines.

In all actions for the reversion to the Government of lands of the public domain or
improvements thereon, the Republic of the Philippines is the real party in interest. The
action shall be instituted by the Solicitor General or the officer acting in his stead, in
behalf of the Republic of the Philippines.23 Moreover, such action does not prescribe.
Prescription and laches will not bar actions filed by the State to recover its property
acquired through fraud by private individuals.24

Based on the foregoing, we rule that petitioners are not the real parties in interest in this
case. We therefore affirm the dismissal by the trial court of the complaint and the ruling
of the Court of Appeals that petitioners must first lodge their complaint with the Bureau
of Lands in order that an administrative investigation may be conducted under Section
9125 of The Public Land Act.

As to petitioners contention that they should be deemed real parties in interest based
on the principle of equity, we rule otherwise. Equity, which has been aptly described as
"justice outside legality," is applied only in the absence of, and never against, statutory
law or judicial rules of procedure. Positive rules prevail over all abstract arguments based
on equity contra legem.26

WHEREFORE, the petition is DENIED. The assailed Decision dated April 28, 2004 and the
Resolution dated June 22, 2004 of the Court of Appeals in CA-G.R. CV No. 68934 are
AFFIRMED.

Costs against petitioners.

SO ORDERED.

LEONARDO A. QUISUMBING
Acting Chief Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

DANTE O. TINGA
Associate Justice RENATO C. CORONA*
Associate Justice
MINITA V. CHICO-NAZARIO**
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Acting Chief Justice
Footnotes

* Additional member in lieu of Associate Justice Presbitero J. Velasco, Jr. who is abroad on
official business.

** Additional member in lieu of Associate Justice Arturo D. Brion who is on leave.

1 Rollo, pp. 37-42. Penned by Associate Justice Sergio L. Pestao, with Associate Justices
Roberto A. Barrios and Vicente Q. Roxas concurring.

2 Id. at 44. Penned by Associate Justice Vicente Q. Roxas, with Associate Justices Roberto
A. Barrios and Aurora S. Lagman concurring.

3 Id. at 45-50.

4 Id. at 37.

5 Records, pp. 11-12.

6 Id. at 14.

7 Id. at 17.

8 Id. at 18.

9 Id. at 19.

10 Id. at 22.

11 Id. at 23.

12 Id. at 1-10.

13 An Act to Amend and Compile the Laws Relative to Lands of the Public Domain,
approved on November 7, 1936.

14 Records, pp. 35-37.

15 An Act to Provide for the Adjudication and Registration of Titles to Lands in the
Philippine Islands, enacted on November 6, 1902 and took effect on January 1, 1903.

16 Rollo, p. 49.

17 Id. at 42.

18 Id. at 103.

19 SEC. 101. All actions for the reversion to the Government of lands of the public
domain or improvements thereon shall be instituted by the Solicitor General or the
officer acting in his stead, in the proper courts, in the name of the Republic of the
Philippines.

20 Rollo, p. 31.

21 Id. at 118.

22 Republic v. Court of Appeals, G.R. No. 126316, June 25, 2004, 432 SCRA 593, 598-599.
23 Ortigas & Company, Limited Partnership v. Ruiz, No. L-33952, March 9, 1987, 148
SCRA 326, 339-340, citing The Director of Lands v. Lim, et al., 91 Phil. 912 (1952).

24 Republic v. Heirs of Felipe Alejaga, Sr., G.R. No. 146030, December 3, 2002, 393 SCRA
361, 374.

25 SEC. 91. The statements made in the application shall be considered as essential
conditions and parts of any concession, title, or permit issued on the basis of such
application, and any false statement therein or omission of facts altering, changing, or
modifying the consideration of the facts set forth in such statements, and any
subsequent modification, alteration, or change of the material facts set forth in the
application shall ipso facto produce the cancellation of the concession, title, or permit
granted. It shall be the duty of the Director of Lands, from time to time and whenever he
may deem it advisable, to make the necessary investigations for the purpose of
ascertaining whether the material facts set out in the application are true, or whether
they continue to exist and are maintained and preserved in good faith, and for the
purposes of such investigation, the Director of Lands is hereby empowered to issue
subpoenas and subpoenas duces tecum and, if necessary, to obtain compulsory process
from the courts. In every investigation made in accordance with this section, the
existence of bad faith, fraud, concealment, or fraudulent and illegal modification of
essential facts shall be presumed if the grantee or possessor of the land shall refuse or
fail to obey a subpoena or subpoena duces tecum lawfully issued by the Director of
Lands or his authorized delegates or agents, or shall refuse or fail to give direct and
specific answers to pertinent questions, and on the basis of such presumption, an order
of cancellation may issue out further proceedings.

26 Republic v. Court of Appeals, G.R. No. 100709, November 14, 1997, 281 SCRA 639,
649, citing Causapin v. Court of Appeals, G.R. No. 107432, July 4, 1994, 233 SCRA 615,
625; Zabat, Jr. v. Court of Appeals, No. L-36958, July 10, 1986, 142 SCRA 587, 591.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14157 October 26, 1960

In the matter of escheat proceedings of the estate of the deceased Anne Fallon Murphy
and Tomas Fallon married to Julia Fallon. MUNICIPALITIES OF MAGALLON, ISABELA and LA
CASTELLANA, NEGROS OCCIDENTAL, petitioners-appellees,
vs.
IGNATIUS HENRY BEZORE, ET AL., oppositors-heirs appellants.

Martiniano O. dela Cruz for appellant.

Assistant General Antonio A. Torres and Solicitor Conrado T. Limcaoco for appellees.

LABRADOR, J.:

These are escheat proceedings instituted by the Municipalities of Magallon, La Castellana

and Isabela, Province of Negros Occidental, in the Court of First Instance of that province,
praying that the estates of the deceased Anne Fallon Murphy and Thomas Fallon the
latter married to Julia Fallon, consisting of agricultural lands and residential lots, as well
as accrued rentals deposited with the Warner, Barnes and Co., Ltd., be escheated in
favor of the above-named municipalities, respectively, wherever the real estates are
situated. Finding that the petition was in order, the judge of the court ordered the
publication of the petition and set the same for hearing before itself on October 9, 1957.

The evidence shows that the properties sought to be escheated originally to Charles J.
Fallon, an American citizen, married to Rosario Santaromana. Fallon died in Manila on
March 25, 1935, so his wife acquired by inheritance one-half of the said properties as
owner, and the other half as usufructuary. The value of the properties of Charles J. Fallon
in 1936 is estimated at P46l,105.41 (Exhibit "H"). His wife Rosario Santaromana died in
1943, and thereupon the properties which she held in usufruct were transmitted to the
brother and sister of her deceased husband, namely, Thomas Fallon and Anne Fallon
Murphy. The value of the estate belonging to both Thomas Fallon and Anne Fallon Murphy
were residents of the United States and as nothing was known about them from their
relatives in the United States, the petitioning municipalities believed that they had died
without heirs. Hence the petition for escheat.

At the hearing of the petition, evidence was submitted that Anne Fallon Murphy died on
March 12, 1936 in San Francisco, California (ROA p. 21), while Thomas Fallon, died on
May 26, 1936, also in San Francisco, California (ROA p. 25). Julia Fallon, on the other
hand, died in San Francisco, California on December 2, 1944 (ROA p. 26).

Opposition to the petition for escheat was filed by Ignatius Bezore. Elwood Knickerbocker
and Mary Irene Fallon McCormick Henry Bezore claims that he is the a nephew of the
decedents because his mother was their sister. Elwood Knickerbocker also claims to be
the sole legatee of his wife Loreta Knickerbocker, who in turn, was the residuary legatee
of Anne Fallon Murphy. Mary Irene Murphy McCormick likewise claims that she is the
niece of the decedents as her father was a brother of said decedents. Conformably to
their petitions, all the oppositors pray that the petition for escheat be dismissed and that
the properties of the decedents be disturbed among them.

The court, after hearing, found that Anne Fallon Murphy died in San Francisco on March
12, 1936 and Thomas Fallon, also in the same city on May 26, 1936; that Thomas Fallon
was survived by his wife Julia Fallon, who in turn, died in San Francisco on December 22,
1944; that Ane Fallon Murphy executed a will on February 7, 1935, which was admitted
to probate on May 7, 1937. Considering these facts the court denied the petition for
escheat of the properties of the deceased Anne Fallon Murphy and Thomas Fallon, for the
reason that Thomas Fallon died with an heir his wife Julia Fallon, and Anne Fallon Murphy,
for her part, died leaving a will, in which she disposed of all her properties.

As to prayers contained in the opposition asking that the oppositors be declared heirs of
the deceased Thomas Fallon and Anne Fallon Murphy, the court declared that the
evidence submitted was not competent or sufficient to sustain the claim of the
oppositors and, therefore denied said prayers.

The petitioning municipalities presented no appeal, but the oppositors did appeal,
claiming that the lower court erred in not rendering judgment in their favor and in not
declaring them heirs of the decedents Anne Fallon Murphy and Thomas Fallon.

This appeal can not be entertained. While it is possible for the estates of the deceased
Anne Fallon Murphy and Thomas Fallon, who at the time of their death were residents of
San Francisco, California, to be settled here, or more especially in Negros Occidental
where they had properties, these proceedings were instituted as escheat proceedings
and not for the settlement of the estate of deceased persons. The court acquired
jurisdiction to hear the petition for escheat by virtue of the publication of the petition for
escheat. The jurisdiction acquired can not be converted into one for the distribution of
the properties of the said decedents. For such proceedings (for the distribution of the
estate of the decedents) to be instituted, the proper parties must be presented and the
proceedings should comply with the requirements of the Rule. Hence, the court of First
Instance did not have the power to order, or to proceed with, the distribution of the
estates of the decedents in these escheat proceedings, and adjudicate the properties to
the oppositors.

WHEREFORE, the decision appealed from should be, as it hereby is, affirmed, without
costs.

Paras, C.J., Bengzon. Padilla, Bautista Angelo, Reyes, J.B.L. Barrera, Gutierrez David, and
Paredes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16106 December 30, 1961

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,

vs.
PHILIPPINE NATIONAL BANK, ET AL., defendants,
THE FIRST NATIONAL CITY BANK OF NEW YORK, defendant-appellee.

Office of the Solicitor General for plaintiff-appellant.

Picazo, Lichauco and Agcaoili for defendant-appellee.

BAUTISTA ANGELO, J.:

The Republic of the Philippines filed on September 25, 1957 before the Court of First
Instance of Manila a complaint for escheat of certain unclaimed bank deposits balances
under the provisions of Act No. 3936 against several banks, among them the First
National City Bank of New York. It is alleged that pursuant to Section 2 of said Act
defendant banks forwarded to the Treasurer of the Philippines a statement under oath of
their respective managing officials of all the credits and deposits held by them in favor of
persons known to be dead or who have not made further deposits or withdrawals during
the period of 10 years or more. Wherefore, it is prayed that said credits and deposits be
escheated to the Republic of the Philippines by ordering defendant banks to deposit
them to its credit with the Treasurer of the Philippines.

In its answer the First National City Bank of New York claims that, while it admits that
various savings deposits, pre-war inactive accounts, and sundry accounts contained in its
report submitted to the Treasurer of the Philippines pursuant to Act No. 3936, totalling
more than P100,000.00, which remained dormant for 10 years or more, are subject to
escheat however, it has inadvertently included in said report certain items amounting to
P18,589.89 which, properly speaking, are not credits or deposits within the
contemplation of Act No. 3936. Hence, it prayed that said items be not included in the
claim of plaintiff.

After hearing the court a quo rendered judgment holding that cashier's is or manager's
checks and demand drafts as those which defendant wants excluded from the complaint
come within the purview of Act No. 3936, but not the telegraphic transfer payment which
orders are of different category. Consequently, the complaint was dismissed with regard
to the latter. But, after a motion to reconsider was filed by defendant, the court a quo
changed its view and held that even said demand drafts do not come within the purview
of said Act and so amended its decision accordingly. Plaintiff has appealed.lawphil.net

Section 1, Act No. 3936, provides:

Section 1. "Unclaimed balances" within the meaning of this Act shall include credits or
deposits of money, bullion, security or other evidence of indebtedness of any kind, and
interest thereon with banks, as hereinafter defined, in favor of any person unheard from
for a period of ten years or more. Such unclaimed balances, together with the increase
and proceeds thereof, shall be deposited with the Insular Treasure to the credit of the
Government of the Philippine Islands to be as the Philippine Legislature may direct.

It would appear that the term "unclaimed balances" that are subject to escheat include
credits or deposits money, or other evidence of indebtedness of any kind with banks, in
favor of any person unheard from for a period of 10 years or more. And as correctly
stated by the trial court, the term "credit" in its usual meaning is a sum credited on the
books of a company to a person who appears to be entitled to it. It presupposes a
creditor-debtor relationship, and may be said to imply ability, by reason of property or
estates, to make a promised payment ( In re Ford, 14 F. 2d 848, 849). It is the correlative
to debt or indebtedness, and that which is due to any person, a distinguished from that
which he owes (Mountain Motor Co. vs. Solof, 124 S.E., 824, 825; Eric vs. Walsh, 61 Atl.
2d 1, 4; See also Libby vs. Hopkins, 104 U.S. 303, 309; Prudential Insurance Co. of
America vs. Nelson, 101 F. 2d, 441, 443; Barnes vs. Treat, 7 Mass. 271, 274). The same is
true with the term "deposits" in banks where the relationship created between the
depositor and the bank is that of creditor and debtor (Article 1980, Civil Code; Gullas vs.
National Bank, 62 Phil. 915; Gopoco Grocery, et al. vs. Pacific Coast Biscuit Co., et al., 65
Phil. 443).

The questions that now arise are: Do demand draft and telegraphic orders come within
the meaning of the term "credits" or "deposits" employed in the law? Can their import be
considered as a sum credited on the books of the bank to a person who appears to be
entitled to it? Do they create a creditor-debtor relationship between drawee and the
payee?

The answers to these questions require a digression the legal meaning of said banking
terminologies.

To begin with, we may say that a demand draft is a bill of exchange payable on demand
(Arnd vs. Aylesworth, 145 Iowa 185; Ward vs. City Trust Company, 102 N.Y.S. 50; Bank of
Republic vs. Republic State Bank, 42 S.W. 2d, 27). Considered as a bill of exchange, a
draft is said to be, like the former, an open letter of request from, and an order by, one
person on another to pay a sum of money therein mentioned to a third person, on
demand or at a future time therein specified (13 Words and Phrases, 371). As a matter of
fact, the term "draft" is often used, and is the common term, for all bills of exchange.
And the words "draft" and "bill of exchange" are used indiscriminately (Ennis vs.
Coshoctan Nat. Bank, 108 S.E., 811; Hinnemann vs. Rosenback, 39 N.Y. 98, 100, 101;
Wilson vs. Bechenau, 48 Supp. 272, 275).

On the other hand, a bill of exchange within the meaning of our Negotiable Instruments
Law (Act No. 2031) does not operate as an assignment of funds in the hands of the
drawee who is not liable on the instrument until he accepts it. This is the clear import of
Section 127. It says: "A bill of exchange of itself does not operate as an assignment of
the funds in the hands of the drawee available for the payment thereon and the drawee
is not liable on the bill unless and until he accepts the same." In other words, in order
that a drawee may be liable on the draft and then become obligated to the payee it is
necessary that he first accepts the same. In fact, our law requires that with regard to
drafts or bills of exchange there is need that they be presented either for acceptance or
for payment within a reasonable time after their issuance or after their last negotiation
thereof as the case may be (Section 71, Act 2031). Failure to make such presentment will
discharge the drawer from liability or to the extent of the loss caused by the delay
(Section 186, Ibid.)

Since it is admitted that the demand drafts herein involved have not been presented
either for acceptance or for payment, the inevitable consequence is that the appellee
bank never had any chance of accepting or rejecting them. Verily, appellee bank never
became a debtor of the payee concerned and as such the aforesaid drafts cannot be
considered as credits subject to escheat within the meaning of the law.

But a demand draft is very different from a cashier's or manager's cheek, contrary to
appellant's pretense, for it has been held that the latter is a primary obligation of the
bank which issues it and constitutes its written promise to pay upon demand. Thus, a
cashier's check has been clearly characterized in In Re Bank of the United States, 277
N.Y.S. 96. 100, as follows:

A cashier's check issued by a bank, however, is not an ordinary draft. The latter is a bill
of exchange payable demand. It is an order upon a third party purporting to drawn upon
a deposit of funds. Drinkall v. Movious State Bank, 11 N.D. 10, 88 N.W. 724, 57 L.R.A.
341, 95 Am. St. Rep. 693; State v. Tyler County State Bank (Tex. Com. App.) 277 S.W.
625, 42 A.L.R. 1347. A cashier's check is of a very different character. It is the primary
obligation of the bank which issues it (Nissenbaum v. State, 38 Ga. App. 253, S.E. 776)
and constitutes its written promise to pay upon demand (Steinmetz v. Schultz, 59 S.D.
603, 241 N.W. 734)....lawphil.net

The following definitions cited by appellant also confirm this view:

A cashier's check is a check of the bank's cashier on his or another bank. It is in effect a
bill of exchange drawn by a bank on itself and accepted in advance by the act of
issuance (10 C.J.S. 409).

A cashier's check issued on request of a depositor is the substantial equivalent of a

certified check and the deposit represented by the check passes to the credit of the
checkholder, who is thereafter a depositor to that amount (Lummus Cotton Gin Co. v.
Walker, 70 So. 754, 756, 195 Ala. 552).

A cashier's check, being merely a bill of exchange drawn by a bank on itself, and
accepted in advance by the act of issuance, is not subject to countermand by the payee
after indorsement, and has the same legal effects as a certificate deposit or a certified
check (Walker v. Sellers, 77 So. 715, 201 Ala. 189).

A demand draft is not therefore of the same category as a cashier's check which should
come within the purview of the law.

The case, however, is different with regard to telegraphic payment order. It is said that
as the transaction is for the establishment of a telegraphic or cable transfer the
agreement to remit creates a contractual obligation a has been termed a purchase and
sale transaction (9 C.J.S. 368). The purchaser of a telegraphic transfer upon making
payment completes the transaction insofar as he is concerned, though insofar as the
remitting bank is concerned the contract is executory until the credit is established (Ibid.)
We agree with the following comment the Solicitor General: "This is so because the
drawer bank was already paid the value of the telegraphic transfer payment order. In the
particular cases under consideration it appears in the books of the defendant bank that
the amounts represented by the telegraphic payment orders appear in the names of the
respective payees. If the latter choose to demand payment of their telegraphic transfers
at the time the same was (were) received by the defendant bank, there could be no
question that this bank would have to pay them. Now, the question is, if the payees
decide to have their money remain for sometime in the defendant bank, can the latter
maintain that the ownership of said telegraphic payment orders is now with the drawer
bank? The latter was already paid the value of the telegraphic payment orders otherwise
it would not have transmitted the same to the defendant bank. Hence, it is absurd to say
that the drawer banks are still the owners of said telegraphic payment orders."

WHEREFORE, the decision of the trial court is hereby modified in the sense that the items
specifically referred to and listed under paragraph 3 of appellee bank's answer
representing telegraphic transfer payment orders should be escheated in favor of the
Republic of the Philippines. No costs.

Reyes, J.B.L., Barrera, Paredes, Dizon and De Leon, JJ., concur.

Bengzon, C.J., Padilla, Labrador and Concepcion, JJ., took no part.